MI Legalize v State of Michigan - Legal Archive

CLICK HERE TO VIEW THE MI LEGALIZE ORIGINAL COMPLAINT TO MI SUPREME COURT - 

CLICK HERE TO VIEW THE MI LEGALIZE COMPLAINT AS PDF

CLICK HERE TO VIEW THE MI LEGALIZE MOTION AS PDF

CLICK HERE TO VIEW THE STATE OF MICHIGAN'S 1st RESPONSE AS PDF-July 8th, 2016

CLICK HERE TO VIEW THE STATE OF MICHIGAN'S 2nd RESPONSE AS PDF-July 11th 2016

CLICK HERE TO VIEW THE MI LEGALIZE RESPONSE MOTION AS PDF - July 15th 2016

CLICK HERE TO VIEW THE STATE OF MICHIGAN's RESPONSE TO CROSS MOTION AS PDF- July 29th 2016

CLICK HERE TO VIEW THE MI LEGALIZE RESPONSE TO STATE AS PDF - AUGUST 2ND 2016


 CLICK HERE TO VIEW TO VIEW THE UNITED STATES SUPREME COURT  PETITION FOR A WRIT OF CERTIORARI

 

 

NO. 16 -_____

 

In the Supreme Court of the United States

 

 

MICHIGAN COMPREHENSIVE CANNABIS LAW 

REFORM COMMITTEE a/k/a MILEGALIZE,

                                                                           Petitioner,

–v–

JOHNSON ET AL.,

                                                                             Respondents.

 

 

On Petition for Writ of Certiorari to the

Supreme Court of Michigan

 

 

PETITION FOR WRIT OF CERTIORARI

 

             J. NICHOLAS BOSTIC                  JEFFREY A. HANK

           COUNSEL OF RECORD                  HANK LAW PLLC

J. NICHOLAS BOSTIC, PLLC

 

101 S. WASHINGTON SQUARE

909 N. WASHINGTON SQUARE SUITE 200

LANSING, MI 48906     LANSING, MI 48933 (517) 706-0132 (855) 426-5529

             BARRISTERBOSTIC@ATT.NET      JAH@HANKLEGAL.COM

             

            DECEMBER 6, 2016                                     COUNSEL FOR PETITIONER

 

SUPREME COURT PRESS     ♦    (888) 958-5705     ♦    BOSTON, MASSACHUSETTS

 

 

QUESTIONS PRESENTED

On June 1, 2016, Petitioner, the Michigan Comprehensive Cannabis Law Reform Committee a/k/a MI Legalize submitted 354,000, which would be equivalent to 11% of the total votes in the State of Michigan in the previous gubernatorial election, by placing a ballot question into the 2016 or 2018 elections. On June 17, 2016, Governor Rick Snyder signed a bill restricting the time to gather signatures from 4 years to a strict 180 days without exception, severely impairing the intiative after the signatures had been collected. When Petitioner sought to validate the signatures with the election clerks of the state, local clerks were instructed that they had no obligation to cooperate, no judicial hearings were provided, and a state voter database that could have efficiently cross-checked the signatures was not utilized.

  1. After granting the ballot petition initiative process to its citizens, can a state place undue burdens on the process that are not rationally related to a compelling state interest, or are not narrowly tailored, or the least burdensome means of achieving the compelling state interest?
  2. If a state enforces a policy on the initiative process that is literally impossible to comply with, does that policy impose an undue burden on core political speech and is therefore unconstitutional?
  3. Where the Petitioners and the petition signatories were deprived of any opportunity to participate in signature validation and never afforded any opportunity to participate in a judicial hearing, was due process denied by Respondents and Michigan courts, respectively?
  4. Are MCL 168.472a and the Michigan Board of State Canvassers 1986 policy for rebutting the presumption of staleness of signatures unconstitutionally vague?

             

 

CORPORATE DISCLOSURE STATEMENT

Petitioner, the Michigan Comprehensive Cannabis Law Reform Committee a/k/a MI Legalize, is not a public company and no public company owns 10% or more of its equity.

 

 

 

 

 

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL AND

        STATUTORY PROVISIONS INVOLVED .......... 2

  1. Constitutional Provisions ................................ 2
  2. Michigan State Statutes .................................. 2

STATEMENT OF FACTS .......................................... 2

  1. Statement of the Case ...................................... 2
  2. Factual and Procedural Background............... 6
  3. Relevant Michigan Petition Law ..................... 8
  4. The Constitutional Issues Were Preserved ... 11

SUMMARY OF ARGUMENT .................................. 11

REASONS FOR GRANTING THE PETITION ....... 13

I. THE LOWER COURT MADE NUMEROUS ERRORS OF LAW AND FACT .............................. 13

II. STRICT SCRUTINY AND THE UNDUE BURDEN STANDARD AS APPLIED TO MICHIGAN PETITION

LAW ................................................................. 15

TABLE OF CONTENTS – Continued

 

III. FACTORS OF THE UNDUE BURDEN—THE ENORMOUS COSTS OF COMPLIANCE AND THE

IMPOSSIBLY BURDENSOME LOGISTICS OF THE BOC POLICY .................................................... 18

  1. MCL 168.472a AND THE 1986 BOC POLICYARE UNCONSTITIONAL ..................................... 20
  1. THERE IS NO STATE INTEREST THE BOC POLICY ACCOMPLISHES.................................... 25

VI. THE RECORD IS CLEAR THAT LESS BURDENSOME, MORE NARROWLY TAILORED MEANS

EXIST TO ACHIEVE ANY STATE INTEREST ........ 28

CONCLUSION & RELIEF REQUESTED .............. 37

 

APPENDIX TABLE OF CONTENTS

Order of the Supreme Court of Michigan

         Denying Requested Relief

      (September 7, 2016) ............................................ 1a

Order of the Supreme Court of Michigan

      (September 7, 2016) ............................................ 2a

Order of the Court of Appeals of the

        State of Michigan (September 7, 2016) ............. 4a

Opinion and Order of the Michigan

        Court of Claims (August 23, 2016) .................... 5a

Relevant Constitutional and

        Statutory Provisions ......................................... 23a

TABLE OF CONTENTS – Continued

 

BOC Policy on Rebutting

      Presumption of Staleness ................................. 28a

Appellant MILegalize’s Emergency Application for Leave to Appeal Before a Decision of the Court of Appeals Resolution of Appeal

      Requested by September 6, 2016,

        Relevant Excerpts (August 30, 2016) .............. 38a

Appellant’s Emergency Application

        Relevant Excerpts (August 30, 2016) .............. 59a

Brief in Support of Mandamus and

      Declaratory and Injunctive Relief,

       Relevant Excerpts ............................................ 81a

Complaint to Show Cause, Mandamus, Request for Declaratory, Injunctive and Other Relief

Relevant Excerpts ............................................ 99a

Freedom of Information 

      Related Correspondence ................................. 113a

Board of State Canvassers Meeting,

       Relevant Excerpts .......................................... 123a

Affidavits

Affidavit of Matthew Abel

    (July 15, 2016) .......................................... 148a

Affidavit of Alan Fox

               (June 1, 2016) ........................................... 150a

Affidavit of Chris Silva

                (June 16, 2016) ......................................... 152a

Affidavit of Nicholas Zettell

    (June 16, 2016) ......................................... 154a

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983) ........................................... 27

Bogaert v. Land II,

675 F.Supp.2d 742 (W.D. Mich. 2009) .............. 24

Buckley v. Am. Const. Law Found., Inc.,

525 U.S. 182, 119 S.Ct. 636,

142 L.Ed.2d 599 (1999) ............................... 24, 25

Buckley v. Valeo,

424 U.S. 1, 96 S.Ct. 612,

46 L.Ed.2d 659 (1976) ....................................... 15

Burdick v. Takushi,

504 U.S. 428 (1992) ............................................ 27

Chandler v. City of Arvada,

292 F.3d 1236 (10th Cir. 2002) ......................... 24

Citizens for Tax Reform v. Deters,

518 F.3d 375 (6th Cir. 2008) ............................. 21

Doe v. Reed,

130 S.Ct. 2811 (2010) ........................................ 21

G&V Lounge Inc. v. Michigan Liquor Control

Comm’n, 23 F.3d 1071 (6th Cir. 1979).............. 28

Gannett Co. Inc. v. DePasquale,

443 U.S. 368 (1979) ............................................ 28

Green Party of Tenn. v. Hargett,

791 F.3d 684 (6th Cir. 2015) ....................... 27, 28

Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966) ........................................... 27

 

 

 

TABLE OF AUTHORITIES—Continued

Idaho Coal United for Bears v. Cenarrusa,

342 F.3d 1073 (9th Cir. 2003) ............................ 26

Krislov v. Rednour,

226 F.3d 851 (7th Cir. 2000) ............................. 24

League of Women Voters v. Brunner,

548 F.3d 463 (6th Cir. 2008) ............................. 27

Lerman v. Bd. of Elections,

232 F.3d 135 (2d Cir. 2000) ............................... 24

Meyer v. Grant,

486 U.S. 414 (1988) .................................... passim

Minnesota Board for Community Colleges v.

Knight, 465 U.S. 271 (1984) .............................. 28

Moore et al v. Johnson,

No 14-11903 (USDC E.D. MI, S. Div.;

May 23, 2014) .................................................... 22

Moore v. Ogilvie,

394 U.S. 814 (1969) ........................................... 26

Nader v. Blackwell,

545 F.3d 459 (6th Cir. 2008) ............................. 22

Nader v. Brewer,

531 F.3d 1028 (9th Cir. 2008) ............................. 24

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir. 2012) ............................. 27

Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833, 112 S.Ct. 2791,

120 L.Ed.2d 674 (1992) ................................. 17, 18

 

TABLE OF AUTHORITIES—Continued

Republican Party of Minn. v. White,536 U.S. 765 (2002) ........................................... 21

Timmons v. Twin Cities Area New Party,

520 U.S. 351, 117 S.Ct. 1364,137 L.Ed.2d 589 (1997) ..................................... 21

Whole Women’s Health v. Hellerstedt, 579 U.S. 136 (2016) ............................................. 17

CONSTITUTIONAL PROVISIONS

Mich. Const. art II, § 9 (1963) .................................... 7

U.S. Const. amend. I .......................................... passim

U.S. Const. amend. V ......................................... passim

U.S. Const. amend. XIV ..................................... passim

FEDERAL STATUTES

28 U.S.C. § 1257 .......................................................... 1 52

U.S.C. § 20501 et. seq. ......................................... 34

STATE STATUTES

MCL 168.472a .................................................... passim

MCL 168.476 § 1 ................................................... 2, 14

MCL 168.479 ............................................................... 7

MCL 168.509 ............................................................. 36

MCL 168.544c(8)-(9) ................................................... 4

MCL 168.961(6) .......................................................... 2 x

TABLE OF AUTHORITIES—Continued

MCL 168.961a(4) ........................................................ 2

OTHER AUTHORITIES

Qualified Voter File (QVF) Plays a Vital Role in Michigan’s Election System, available online as of June 14, 2016 at http://www. michigan.gov/sos/0,8611,7-127-1633_8716-27675—,00.html ................................................ 34

 

 

 

 

 

 

PETITION FOR A WRIT OF CERTIORARI

Petitioner Michigan Comprehensive Cannabis Law Reform Committee a/k/a MILegalize, respectfully submits this petition for a writ of certiorari.

 

OPINIONS BELOW

The orders of the Michigan Supreme Court are reported as case nos. 154359 & (4)(5), and 154334. (App.1a-3a) The order of the Michigan Court of Appeals is reported as case no. 334560. (App.4a) The opinion of the Michigan Court of Claims is reported as case no. 16-131-MM. (App.5a-22a)

 

JURISDICTION

The court of last resort issued its final order herein appealed on September 7, 2016. (App.1a-3a) Petitioner timely filed this petition on December 6, 2016. This Court has jurisdiction under 28 U.S.C. § 1257 as Petitioner seeks review of state statutes and policies that are repugnant to the Constitution, specifically the First, Fifth and Fourteenth Amendments.

 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The following constitutional provisions and statutory provisions are reproduced in the appendix.

  1. Constitutional Provisions
  • U.S. Const. amend. I (App.23a)
  • U.S. Const. amend. V (App.23a)
  • U.S. Const. amend. XIV (App.23a-24a)
  1. Michigan State Statutes
  • MCL 168.472a (App.25a)
  • MCL 168.476 § 1 (App.25a-26a)
  • MCL 168.961(6) (App.26a)
  • MCL 168.961a(4) (App.27a)
  • MCL 168.482(5) (App.27a)

 

STATEMENT OF FACTS

A. Statement of the Case

Respondents are unconstitutionally placing undue burdens on the initiative petition process. Petitioner, a registered ballot question committee with a petition approved for circulation by the Board of State Canvassers (BOC), submitted petitions containing at least 354,000 signatures to the Bureau of Elections (BOE) on June 1, 2016, more than the 252,523 required to qualify for the November 2016 or 2018 or next regular election ballot, and is now suffering constitutional deprivations of liberty and property without due process of law, and having exhausted all remedies, seeks relief from this court.

Respondents imposed state election law MCL 168.472a, and a 1986 BOC “policy” to facilitate the law, which purports to require that any signature of a qualified elector on an initiatory petition that is older than 180 days had to be re-verified either by affidavit of the signor, or by certification of voter registration by one of Michigan’s 1500-plus local clerks to overcome the presumption that due to the passage of time the signature may have become invalid. Michigan law presumes all signatures on a petition are valid. In order to validate the older signatures the 1986 BOC policy required Petitioner to:

  1. Prove that the person who executed the signature was properly registered to vote at the time the signature was executed and;
  2. Prove with an affidavit or certificate of the signer or a municipal clerk that the signer was registered to vote in Michigan within the ‘180 day window period’ and further, that the presumption posed under MCL 168.472a could not be rebutted through the use of a random sampling process. (App.28a-37a).

In over 30 years since the BOC policy was enacted, no petition campaign has ever even attempted to comply with this burdensome policy, until Petitioner did. Respondents would not provide an acceptable standard format for individual affidavits for the 200,000-plus signors to re-sign, likely with a notary as witness. Even Respondents had indicated such a process was burdensome to comply with. Petitioner’s position is that the affidavit requirement was so burdensome it was recognized by all parties that it had no rational basis because qualified electors could instead sign a petition again—except a person cannot, because it is a misdemeanor crime in Michigan to sign a petition twice and Respondents would also invalidate all instances of a duplicate signature, including the original. MCL 168.544c(8)-(9).

The second unworkable option for signature validation was for Petitioner to send original signed petitions line-by-line to Michigan’s 1500-plus local clerks to certify each signature. Choosing this option, after Petitioner expended considerable resources preparing the voter certifications using the state’s own database as reference, local clerks refused to validate the signatures (a process that they had never done in history) and Respondents actually told local clerks that they did not have to validate the signatures on behalf of Petitioner, yet still demanded that Petitioner have local clerks validate the signatures to comply.

Petitioner sought assistance for compliance with the policy from local clerks, some of whom refused to assist Petitioner and asked the state for guidance. Clerks had no legal duty to assist Petitioner or any ballot committee in the validation of signatures, so Petitioner has no legal recourse against the clerks. It is the Respondents’ duties to canvass the petitions submitted under state law. MCL 168.472a created the standard of the rebuttable presumption in 1973, and was not enforced for 13 years due to an attorney general opinion declaring it unconstitutional; in 1986 the BOC purported to create a process for rebutting the presumption by involving local clerks in the process, yet no state statute provides a legal duty or obligation to do so, nor has any funding ever been appropriated for this purpose; the process of the BOC policy is therefore inadequate.

At the same time Respondents required Petitioner by policy and not by law to utilize the same local clerks to validate signatures, Respondents told local clerks in writing that the clerks need not assist Petitioner or other campaigns in signature validation. Respondents actively frustrated the process for Petitioner to qualify signatures that proved to be impossible to comply with, through no fault of Petitioner, but rather due to the fault of Respondents and the undue burden of the policy itself. Respondents were aware that Petitioner was prepared to file its petitions and aware that state policy was outdated due to the creation of a state database, the Qualified Voter File (QVF), and that the clerks were both refusing to cooperate and claiming no legal duty to cooperate with Petitioner in the validation process. As a result, approximately one month prior to the filing deadline, Respondents instructed clerks they need not assist and also refused to provide Petitioner with any workable process to validate signatures, denying due process and usurping the reasonable investment backed expectations of Petitioner, who reasonably relied on the existence of a 30-year old policy to validate signatures and whom had been petitioning for over 11 months towards the filing deadline. The Legislature changed the state law six days after Petitioner filed its petitions, limiting the petition time period and eliminating both the rebuttable presumption law, and the BOC policy. It was as if Respondents adopted a new law that had not been enacted as their policy and retroactively applied it to a campaign that had been operating under decades of established process and law.

Despite this, Petitioner still timely filed its qualified signatures and provided Respondents with proof of the voter registrations using references from the state’s QVF database which the state is also required to use by law to verify the signatures, yet refused to do.

In sum, these actions, policies, practices, and laws placed substantial obstacles in the path of Petitioner in filing 354,000 signatures and spending approximately $1 million dollars to initiate legislation only to have its investment backed expectations frustrated by frivolous regulatory action and inaction, while also unfairly silencing the important electoral voices of approximately 354,000 of Michigan’s citizens in the process.

  1. Factual and Procedural Background

On June 1, 2016 Petitioner filed 354,000-plus signatures to initiate legislation with Respondents. On June 6, 2016, Respondents refused to certify Petitioner’s initiative using as justification the alleged failure of Petitioner to comply with the BOC policy. On June 7, 2016, Michigan’s Governor Snyder signed a bill drastically restricting the time to petition by 87.5% from four years to a strict 180 days without exception, eliminating both the statutory and policy requirements of the rebuttable presumption applied to Petitioner (both the statute and policy are now repealed). Petitioner sued in the Michigan Court of Claims on June 16, 2016, seeking immediate consideration, and citing First, Fifth, and Fourteenth Amendment violations in both an original complaint and in subsequent written motions. The Court of Claims did not issue a scheduling order or ever provide a hearing. On August 19, 2016, Appellant filed a motion in the Court of Claims asking for a decision or a scheduling order so that it would not be prejudiced by the delay of the Court. Both Petitioner and Respondents filed motions for summary disposition, which the Court of Claims granted for Respondents in an opinion made public August 24, 2016. On August 26, 2016, Petitioner filed an original action in the Michigan Supreme Court under MCL 168.479 of the BOC’s decision containing First, Fifth, and Fourteenth Amendment arguments. On August 30, 2016, Petitioner filed motions for immediate consideration, peremptory reversal, and emergency application for leave to appeal of the Court of Claims decision in the Michigan Court of Appeals, as well as filing the same with a motion for consolidation and bypass in the Michigan Supreme Court, citing First, Fifth, and Fourteenth Amendment arguments on appeal. On September 7, 2016, both the Court of Appeals and Supreme Court declined to hear the appeals on the merits, and the Supreme Court denied the motion to consolidate. On December 6, 2016, Petitioner files this petition for a writ of certiorari with a prayer for relief from this Honorable Court.

  1. Relevant Michigan Petition Law

Under Michigan’s 1963 Constitution Art II, § 9, to invoke the initiative, petitions signed by a number of registered electors, not less than eight percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected are required. At the time of Petitioner filing 100,000 more than a sufficient number of signatures for qualifying the initiative, Michigan law provided:

MCL 168.472(a). It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if it was made more than 180 days before the petition was filed with the office of the secretary of state.

The history of this law was extensively briefed in the lower court pleadings and not recited herein. The rebuttable presumption standard was interpreted to mean that petitioners had the 4-year time period between gubernatorial elections to circulate petitions for initiative legislation, but signatures filed with the state more than 180 days old are presumed “stale” (vaguely undefined but thought to mean it is either a duplicate or that it may be impossible to verify a person’s older voter registration record in 1986, not nowadays). This presumption could be overcome by proving the signature was of a registered voter. Respondents also have a policy that each instance of a duplicate signature is disqualified as void—in other words a registered voter that signs twice, knowingly or not, within 180 days of filing or longer than, will have both valid signatures disqualified—which raises its own First Amendment implications.

Respondents have only a ministerial duty and authority to canvass petitions using the QVF. A review of the initiative process from Respondent Secretary of State provided in relevant part:

Circulation Period

Michigan election law, MCL 168.472a, states (emphasis added):

It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if it was made more than 180 days before the petition was filed with the office of the secretary of state.” Given this provision, signatures more than 180 days old on the date an initiative petition is filed are not counted unless shown to be valid by the proponents of the initiative. Information on the procedure for rebutting the presumption of signature invalidity provided under MCL 168.472a is available from the Michigan Department of State’s Bureau of Elections

In November 2015 Petitioner and Respondents began discussing how Petitioner should submit proofs to rebut the presumption of staleness, embarking on a quixotic six-month quest to coordinate the logistics of the rebuttable presumption presentation of proofs needed. Respondent BOE asserted that the only way to rebut the presumption of MCL 168.472a was for the proponent of an initiative to comply with the 1986 BOC policy. Over the course of the following six months the BOC debated three policy revisions, ultimately deadlocking in split 2-2 votes that resulted in no workable policy revisions.

The policy was not statutory or established by normal rulemaking or notice methods, nor was it available to the public except upon request to the BOE. The BOE considered the rebuttal timeline of 180 days to be ‘rolling’, applied to signatures backwards in time based on the date of filing, not how long a campaign had been petitioning for.

Complicating the process for signors and circulators is that it is also a misdemeanor criminal offense under Michigan law to sign a petition twice. MCL 168.482(5) states that every petition must contain the following language:

WARNING A person who knowingly signs this petition more than once, signs a name other than his or her own, signs when not a qualified and registered elector, or sets opposite his or her signature on a petition, a date other than the actual date the signature was affixed, is violating the provisions of the Michigan election law. 

(App.27a). Petitions do not include notices regarding the rebuttable presumption, or any 180-day timeline, or that a signor’s signature may become stale, or the potential need for a signor to prove by affidavit his or her signature is not stale, or that clerks may rebut the presumption of staleness.

D. The Constitutional Issues Were Preserved

Petitioner thoroughly raised and preserved all constitutional issues at all levels of the lower courts. Petitioner raised and preserved First, Fifth and Fourteenth amendment claims of undue burden, vagueness, due process, equal protection and unlawful takings in the original Court of Claims complaint and brief in support of a temporary restraining order (App.82a-112a). Petitioner raised the same issues in the court of appeals application for leave to appeal (App.59a-80a). Petitioner raised and preserved the same issues in the Michigan Supreme Court application for leave to appeal (App.38a-58a).

 

SUMMARY OF ARGUMENT

The state courts decided important federal questions of law in a way that conflicts with relevant decisions of this Court, namely Meyer v. Grant, 486 U.S. 414 (1988) and other precedents protecting the First, Fifth and Fourteenth Amendments from state infringement. The First Amendment prohibits a state from placing undue burdens on the initiative process that are not justified by a state interest, and if that state interest can be accomplished by other less burdensome, more narrowly tailored means, the state must do so. Here, an initiative has been denied the right to be placed before voters because of unreasonable burdens frustrating an otherwise duly qualified ballot measure. It is actually a total burden that denies the right to anyone—not just Petitioner. After the state granted the initiative right it rendered the right illusory by demanding compliance with a policy literally impossible to comply with. While simultaneously demanding Petitioner comply with the policy that required Petitioner to seek validation of petition signatures by municipal clerks, Respondents frustrated the ability of Petitioner to comply by instructing municipal clerks that they had no duty to assist Petitioner with validating signatures. Clerks refused to validate the signatures, leaving Petitioner with no available due process whatsoever to process signatures. There is no dispute that a sufficient number of signatures to qualify the initiative per Michigan’s constitution were filed. The Respondents’ actions shock the conscience, as they disenfranchised 354,000 citizens, which would be equivalent to 11% of the total votes cast in the previous gubernatorial election.

Further, the denial of any court hearings for Petitioner, coupled with the failure to provide notice and an opportunity to be heard to all qualified electors whom had lawfully signed the petition without notice that an elector’s signature may need to undergo further validation, is a denial of basic procedural and substantive due process to Petitioner and 354,000 signors. These regulatory actions are an unlawful takings without just compensation that usurped Petitioner’s reasonable investment backed expectations. Petitioner exhausted all other possible avenues for remedy, and the Court must declare the Respondents’ policy unconstitutional, enjoin them from placing undue burdens on the petition process, and remand to the lower court for further hearing(s) with an order to fairly canvass Petitioner’s petitions. The case is not moot. These actions have so far departed from the accepted and usual course of due process and judicial proceedings as to call for an exercise of this Court’s supervisory power.

 

REASONS FOR GRANTING THE PETITION

I. THE LOWER COURT MADE NUMEROUS ERRORS OF LAW AND FACT

The lower court ignored Petitioner’s First, Fifth and Fourteenth Amendment arguments, simply referring to them as “repetitive” (App.19a). The unworkable nature of the BOC policy was ignored by every lower court despite its real-world implications being the central, material factual and legal issue. The terms strict scrutiny, rational basis and undue burden are wholly absent from the only substantive opinion, which only references the First Amendment twice— to acknowledge that Petitioner raised a claim of violation preserving it for appeal. Not a single federal case is cited. This shortchanged analysis may be because at all three levels of courts, Petitioner was not afforded due process or the privilege of even one minute before a judge—no hearing ever occurred—a gross departure from custom and usual procedure in such matters of public interest.

The court mistakenly characterized Petitioner’s argument as that the BOC’s procedure was bad policy and that using the QVF would be preferred by Petitioner and that Petitioner was trying to shift the burden of rebutting the presumption to the BOC. (App.19a-20a). However, Petitioner already overcame the presumption of older signatures being valid on 137,000-plus of its signatures by providing the most credible best evidence possible with line-by-line verification of signors using the state’s own QVF database which was touted by Respondents and by state law as the premier tool for voter verification. (App.150a-151a). At that point the burden of not counting each and every one of those signatures was the BOC’s to either decide they were valid or invalid for some other lawful reason determined by an actual canvass. Respondents made the rebuttable presumption irrebuttable.

The lower court also erred (App.60a, 96a, 101a) by ignoring the statutory framework cited in Petitioner’s original complaint and motions that requires Respondents to use the QVF. MCL 168.476 was amended in part in 1999 and 2000 to require Respondents to use the state’s QVF to canvass petitions, in conflict with the 1973 law MCL 168.472a and 1986 BOC policy, which under standard legislative jurisprudence means it is superior to each, which was ignored by Respondents and the lower courts:

Sec. 168.476(1). Upon receiving notification of the filing of the petitions, the board of state canvassers shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered electors. The qualified voter file shall be used to determine the validity of petition signatures by verifying the registration of signers and the genuineness of signatures on petitions when the qualified voter file contains digitized signatures. (App.25a)

II. STRICT SCRUTINY AND   THE UNDUE BURDEN STANDARD AS APPLIED TO MICHIGAN PETITION LAW

In Meyer v. Grant the Court discussed restrictions on ballot initiatives in the context of a state regulation making the petitioning process more difficult. The First Amendment was implicated when the regulation restricted citizens’ “ability to make [a] matter the focus of statewide discussion” by prohibiting the use of paid petition circulators. In this regard, the use of petitions in the initiative process involved core political speech. But the Court did not hold that the ballot initiative is speech. Strict scrutiny was appropriate not because the case turned on whether ballot initiatives are speech, but because the ballot initiative regulation in that case involved direct restrictions on the petition process.

Thus, the effect of the statute’s absolute ban on compensation of solicitors is clear. It impedes the sponsors’ opportunity to disseminate their views to the public. It curtails the discussion of issues that normally accompanies the circulation of initiative petitions. And it shrinks the size of the audience that can be reached. . . . In short, like the campaign expenditure limitations struck down in Buckley, the Colorado statute imposes a direct restriction which “necessarily reduces the quantity of expression. . . .” 

Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

The rebuttable presumption creates a situation of criminal penalty for engaging in protected First Amendment activity, and shrinks the size of the audience and electors that can participate in the process and, it “necessarily reduces the quantity of expression”. Over 200,000 plus signors cannot participate in the process and worse their signatures will never be counted, ever, and their voices will never be on equal par with other voters. Meyer again,

We are not persuaded by the State’s arguments that the prohibition is justified by its interest in making sure that an initiative has sufficient grass roots support to be placed on the ballot, or by its interest in protecting the integrity of the initiative process. As the Court of Appeals correctly held, the former interest is adequately protected by the requirement that no initiative proposal may be placed on the ballot unless the required number of signatures has been obtained. Id., at 1455. The State’s interest in protecting the integrity of the initiative process does not justify the prohibition because the State has failed to demonstrate that it is necessary to burden appellees’ ability to communicate their message in order to meet its concerns.

Other provisions of the Colorado statute deal expressly with the potential danger that circulators might be tempted to pad their petitions with false signatures. It is a crime to forge a signature on a petition . . . to make false or misleading statements relating to a petition . . . or to pay someone to sign a petition. Further, the top of each page of the petition must bear a statement printed in red ink warning potential signatories that it is a felony to forge a signature on a petition or to sign the petition when not qualified to vote and admonishing signatories not to sign the petition unless they have read and understand the proposed initiative. These provisions seem adequate to the task of minimizing the risk of improper conduct in the circulation of a petition, especially since the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting.

Meyer at 426-427. Michigan law and regulations already provide for disqualifying invalid signatures on the basis of being a duplicate, signing the wrong county form, not providing complete information, improper circulator information, forgery, fraud, torn petitions, and other reasonable rules to assure only valid signatures are counted. Respondents have not disqualified the signatures using any lawful or reasonable basis which clearly protects a state interest, because Respondents have no state interest to protect—the policy simply exists to burden ballot access and reduce the number of qualifying initiatives.

The Court stated in Whole Women’s Health v. Hellerstedt, 579 U.S. 136 (2016), citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), “a statute which, while furthering a valid state interest, has the effect of a placing a substantial obstacle in the path [of a fundamental constitutional right] . . . cannot be considered a permissible means of serving its legitimate ends.” Id. at 877. The Court went further, “unnecessary . . . regulations that have the purpose or effect of presenting a substantial obstacle [on a fundamental constitutional right] impose an undue burden on the process.” Id. at 878. The same analysis applies here. The BOC policy is an unnecessary regulation that places a “substantial obstacle in the path” for petition circulators and signors to exercise core political speech and to have their voices heard in the initiative process on equal footing with other qualified electors.

III. FACTORS OF THE UNDUE BURDEN—THE ENORMOUS COSTS OF COMPLIANCE AND THE IMPOSSIBLY

BURDENSOME LOGISTICS OF THE BOC POLICY

Petitioner expended significant financial resources preparing to assist 1500-plus clerks with the rebuttal process and estimated it would take several million dollars to hire teams of notaries to track down 200,000plus signors across Michigan’s vast two peninsulas if an attempt were made to secure individual affidavits. Respondents acknowledged getting such a significant number of people to sign an affidavit was not realistic, and that it was more practical for people to just sign the petition a second time instead. Except, being a crime in Michigan to sign a petition twice, and the state striking all signatures in the event of a duplicate signature, effectively 200,000-plus registered voters are deprived of the opportunity to participate in the initiative process without facing possible imprisonment for exercising their First Amendment rights.

Each original petition sheet needed to be sent to each municipal clerk for every signor on an ongoing basis. The same single 10-line petition could have to go to ten different clerks. Petitioner would have to hire staff to manage the process and mail petitions to each clerk, and if the clerk did not refuse to rebut the signatures could rebut them on their own time schedule, and demand that Petitioner pay for it. It is difficult to calculate the specific time and financial burdens, but assuming the 55,000 petition sheets turned in contained approximately 200,000 signatures to rebut, this has Petitioner engaging in at least another 200,000 “transactions” with various clerks, all on a rolling, daily basis. This would cost conservatively at least another $125,000 just in postage; assuming only one mailing was required to each clerk. That does not include personnel hours or the cost the clerks would charge Petitioner for performing the process. Despite Respondent BOC having legal responsibility for canvassing petitions, Michigan requires petitions to be circulated on an eighty-three different countywide basis, yet under this policy validated within counties separately by local clerks— the epitome of inefficiency and burdens. It could take months plus millions of dollars in costs to rebut signatures. Infra.

The ballot access process does not have to be easy, and in Michigan it is not—but it should be a fair and stable process and not a pay-to-play system only accessible to monied or special interests who can afford it to the exclusion of common citizens.

Beyond any doubt the BOC policy poses a substantial obstacle as a result of its onerous if not technically impossible-to-comply with nature on the exercise of core political speech with no justifiable benefit for the state.

There is no evidence or data on the record provided by Respondents of any claims of fraud in the petition process generally or with Petitioner’s campaign. The empty record demonstrates there were no issues with the purity of elections, or of an orderly elections process, nor was there any dispute that Petitioner did not file a sufficient number of qualified elector signatures. The affidavit and data disc of Mr. Fox rebutting the presumption using the state’s own valid, accurate QVF database was not challenged by Respondents. (App.150a-151a). The record includes undisputed affidavits from two of the committee’s campaign managers and one of its attorney board members that the policy was too burdensome (App.148a-149a, 152a-155a).

But the logistical and financial burdens of the policy are only part of the problem. The fact Respondents told clerks in writing the month before Petitioner was to file its petition that the clerks had no legal duty to assist Petitioner totally foreclosed the ability for Petitioner to rebut signatures using any method—the ultimate burden of impossibility. (App.113a-122a) These documents are just a glimpse of the problem unfolding in local clerks offices across the state due to the absurdity of the BOC policy.

IV. MCL 168.472a AND THE 1986 BOC POLICY ARE UNCONSTITIONAL

A state need not grant initiatory petition rights to its citizens, but once it does, it must comport with a strict scrutiny analysis of burdens placed on the process. Petitioning is core political speech, and the First Amendment applies to the states through the Fourteenth Amendment. In Doe v. Reed, the Court held that signing an official petition is expressive speech (albeit with legal effect) because it involves the articulation of “a political view.” 130 S.Ct. 2811, 2817 (2010); Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002), stated that a State “having ‘cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles.’”. In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Court held in determining whether an election law violates the First Amendment a court should weigh the burden of the restriction against the State’s interests:

Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Id. at 358, 117 S.Ct. 1364; see also Citizens for Tax

Reform v. Deters, 518 F.3d 375, 387 (6th Cir. 2008) (“Although a state need not present ‘elaborate, empirical verification’ of the weight of its purported justification when the burden is moderate, it must come forward with compelling evidence when the burden is higher”).

Here, the regulatory interest, if any is the purity of elections and ensuring that only qualified electors place questions on the ballot. Even if the BOC policy was possible to comply with, it is still not reasonable due to the undue burdens required to comply in light of both Petitioner and Respondent being able to use the QVF to rebut any presumption that an older signature is not still valid. To demand of Petitioner compliance with the BOC policy, which conflicts with the state law, is not reasonable, and is not narrowly tailored or the least burdensome means to achieve any state interest. Respondents are no strangers to petition restrictions being struck down in federal court as violations of the First and Fourteenth Amendments, and the same analysis applies to Petitioner’s case. See also Moore et al v. Johnson, No 14-11903, slip opinion at 9 (USDC E.D. MI, S. Div.; May 23, 2014) (Representative John Conyers case):

The Registration Statute is, in all material respects, indistinguishable from the statute held facially invalid by the United States Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008). The Sixth Circuit in Nader held that it was “undisputable” that the plaintiff suffered a serious limitation on his First Amendment rights—a limitation triggering application of strict scrutiny—when the statute was applied so as to disqualify signatures gathered by non- registered voters and to keep the candidate off the ballot. Id. at 475, 478. That is exactly what happened in this case. The Registration Statute was applied so as to disqualify Mr. Conyers’ signatures and keep him off the ballot. Nader holds that this amounts to a severe burden on Mr. Conyers’ First Amendment rights and requires the application of strict scrutiny. Id. at 475, 478. The reasoning of Nader also compels the conclusion that application of the Registration Statute severely burdened the First Amendment rights of the Plaintiffs who gathered the signatures that were disqualified.

The Registration Statute cannot survive strict scrutiny because it is not narrowly tailored to serve a compelling state interest. The State’s asserted interest is detecting and preventing election fraud. (See, e.g., ECF #27 at 25, where Secretary Johnson argues that “if strict scrutiny is required, the burden on Plaintiffs is justified by the State’s compelling interest in preventing fraud.”) Requiring circulators to register, Secretary Johnson contends, helps to combat fraud because the State knows where to find a registered voter “if questions arise regarding the validity or genuineness of signatures” (id.), and the State has the ability to subpoena a registered voter to provide testimony, if needed, in an investigation or prosecution of election fraud. The State’s interest in combatting election fraud is compelling, but the State may protect that interest through a less restrictive means.

Similarly, Petitioner’s First Amendment rights are being impermissibly burdened and the state has no compelling interest. See also Bogaert v. Land II, 675 F.Supp.2d 742, 750-752 (W.D. Mich. 2009):

 . . . a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny. (Dkt. No. 37, Op. 34-36.) See Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 194, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Nader v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242 (10th Cir. 2002); Lerman v. Bd. of Elections, 232

F.3d 135, 149 (2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir. 2000).

In Buckley, the Court struck down a statute that required initiative-petition circulators be registered voters. The Court extended its holding in Meyer at 414, by rejecting Colorado’s ban on paying ballotinitiative petition circulators. Buckley:

Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” First Amendment protection for such interaction, we agreed, is “at its zenith.” We have also recognized, however, that “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Buckley at 183 (internal citations omitted.). In this case, as in Meyer, the requirement “imposes a burden on political expression that the State has failed to justify.” Id. at 428. 

Buckley at 194-195.

Examining the character and magnitude of the burden imposed by requiring both the rebuttable presumption law and the BOC policy and the extent to which the law or policy serves Michigan’s interest, as in Buckley, Respondents cannot justify imposing the severe burdens of the policy, which are onerous on the core political speech and associational rights of both petition circulators and signors whom are effectively disenfranchised from the process by the combination of Respondents enforced statutes and policies. The policy does not create more orderly elections, nor is it more efficient than actually applying the state law to use the QVF, nor does it make the process more fair or honest.

V. THERE IS NO STATE INTEREST THE BOC POLICY ACCOMPLISHES

Respondents’ only argument supporting the BOC policy and the only state interest cited by the lower court is the purity of elections. But that argument is superficial at best—the state did not find any issues with Petitioner’s petitions, and Petitioner actually struck duplicate signatures prior to submission. Petitioner submitted one of the most thoroughly validated petitions ever filed. Despite the term “rebuttable presumption” in Michigan election law otherwise always relating to an after-the-fact ability to challenge or prove the validity of a signature, Petitioner did this upfront without any substantive hearing or due process afforded (no after the fact, or before the fact opportunity was ever granted to Petitioner or any signor to rebut). All of the state’s and Petitioner’s legitimate interests can be accomplished by counting the signatures and allowing for the challenging of the sufficiency of valid signatures and providing due process for signors and circulators. Respondents’ policy is to only sample between 500 to 4,000 signatures of the 354,000 signatures filed to determine a statistical sample of validity. Petitioners provided proofs when filing of the registrations of 137,000-plus signors before the Respondents refused to canvass the petitions, validating at least 134,000 more registered voters than Respondents ever would in canvassing any petition.

Disenfranchising Michigan electors who have previously exercised their rights to engage in the initiative process harms circulators, signors, and Petitioner and limits associating with voters to enact legislation. That is, petitioners may not associate equally for purposes of political expression by organizing petition signature drives with whomever they wish. See Meyer at 424 (“The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”); See Idaho Coal United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 n. 7 (9th Cir. 2003) (explaining how the state “subjects itself to the requirements of the Equal Protection Clause” when it provides a right to ballot initiatives or a particular form of voting); cf. Moore v. Ogilvie, 394 U.S. 814, 818 (1969) (“All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote.”). “The right to vote is a ‘precious’ and ‘fundamental’ right,” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012) (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966)), and it is clear that this right “‘is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.’” Id. (quoting League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008)).

The court should apply the framework established in Burdick v. Takushi, 504 U.S. 428, 434 (1992), and Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983), to evaluate Equal Protection Clause challenges to voting restrictions. See Green Party of Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015). “Under the Anderson-Burdick test, the court must first ‘consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.’”

Id. at 693 (quoting Anderson at 789). Second, the court “must ‘identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.’” Id. “Finally, it must ‘determine the legitimacy and strength of each of those interests’ and ‘consider the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id.

Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent” of the burden that the law imposes on the rights of voters. Burdick at 434. If a statute imposes a “‘severe’” burden on the right to vote, we apply strict scrutiny and the law “must be narrowly tailored and advance a compelling state interest.” Hargett, at 693 (quoting Burdick, at 434).

By contrast, if the law imposes a “‘reasonable’ and ‘nondiscriminatory’” burden, “the statute will be subject to rational basis [review] and survive if the state can identify ‘important regulatory interests’ to justify it.” Id. “If the burden lies somewhere in between, courts will weigh the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Id.

As Justice Stevens stressed in his dissent in

Minnesota Board for Community Colleges v. Knight, (1984), “The First Amendment was intended to secure something more than an exercise in futility.” Further, “it is always in the public interest to prevent a violation of a party’s constitutional rights.” G&V Lounge Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1979) citing Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 383 (1979). “Statutes must be struck down if they reduce the number of qualifying initiatives and the exchange of ideas.” Meyer, 486 U.S. at 421.

Both MCL 168.472a and the BOC policy must be declared unconstitutional for treating qualified electors unequally, abridging their right to engage in core political speech and association, and limiting both the number of qualifying initiatives and the exchange of ideas.

VI. THE RECORD IS CLEAR THAT LESS BURDENSOME, MORE NARROWLY TAILORED MEANS EXIST TO ACHIEVE ANY STATE INTEREST

The record contains many experts, attorneys, BOE staff, and BOC members lending support to Petitioner’s claims, including compelling remarks of the Director of the State Bureau of Elections demonstrating the burdens of the BOC policy.

At the December 3, 2015 BOC meeting, BOE Director Christopher Thomas stated in regards to the superiority of using the qualified voter file rather than the 1986 rebuttable presumption policy, “So our data [BOE] does show the exact history of where and when people were registered. So there is new data that did not exist back then.” (App.124a).

At the January 14, 2016 BOC meeting, Director Thomas agreed with Petitioner’s counsel stating, “It was brought up by Mr. Hank[s] that the current state of voter registration has changed significantly with a qualified voter file and that it would be much more efficient to use that as a means to satisfy those two requirements. We have concurred in that since the qualified voter file, in fact, does contain that information and could be made available to the petitioners for the purposes of assisting them in rebutting the stale signatures.” (App.125a). Thomas further stated “ . . . the Governor’s term of office still applies . . . ” in regards to the petition time period. (App.126a). The BOE admits that the QVF is more “efficient” and therefore less burdensome, and can be used to achieve the state’s interest.

At the same meeting, elections attorney Gary Gordon stated in regards to the lack of thoughtful consideration in crafting the 1986 rebuttable presumption policy that, “The existing policy is not a policy that was adopted after—after a long consideration, and we are treating it like its some kind of Holy Grail that was—that was adopted after—after, you know, great thought and so on. This policy was adopted very precipitously by the Board . . . .” (App.126a).

At the same meeting, Gordon noted there is no statutory definition of stale or void, and little thought was behind the definition of either term. (App. 126a-130a).

John Pirich, another elections attorney, echoed Gordon’s statements generally in discussion with Director Thomas about the vague nature of MCL 168.472a, and what the Legislature may have meant by those terms and how even those with the most elections experience could not agree on the definitions of the terms. Attorney Ellis Boal also testified and noted how Pirich and Gordon in written comments to the BOC affirmed that no one knows what the term “stale” means. (App.133a-136a).

Director Thomas went further in his comments, stating that in regards to the 1986 policy and constitutional and legislative prerogative, “ . . . that we really should not rely on the policy developed in 1986 until such time as the legislature gives us clarity.” (App.128a). The Legislature in Michigan never clarified the “rebuttable presumption” since 1973. The plain language of the statute implies that if a signor is proved as registered and the signature is not void for some other lawful reason, the presumption is overcome.

Director Thomas stated regarding the difference of burdens placed on petitioners using the QVF versus the BOC policy to rebut signatures, that an updated policy “ . . . if adopted, would certainly make it much, much easier to rebut signatures . . . ”. (App.129a130a). Respondents have a less burdensome tool—the QVF—and its use would have narrowly tailored the burden on Petitioner. Respondents, however, insisted on application of a 30-year old policy not rationally related to any valid state interest.

Further testimony was provided by petitions expert Alan Fox, of Practical Political Consulting, who provided Petitioner with services to rebut signatures, and who also has experience in challenging initiative petitions. Fox stated about the 1986 policy, “It bears no resemblance to how petitions are validated now.” (App.131a), and that the initiative process, particularly canvassing or attempting to rebut signatures is “ . . . a monumental task; don’t underestimate it. It’s—it’s not impossible, but it would be expensive and it will be time consuming in any petition organization that tries to do it will very rapidly discover that no matter how you do it, it’s not an efficient process.” (App.132a-133a).

At the March 7, 2016 meeting of the BOC, Director Thomas commented to the effect that in order to canvass the petitions and do a random sample for validity, as is the current practice, the BOE would have to know whether to include signatures more than 180 days old. (App.137a-140a). Prior discussion included that commentators recommended just sampling a petition submission, which is Petitioner’s position also.

Gordon again testified on March 7, noting the lack of definition of “stale” and “void” and how different interpretations exist. (App.138a-139a).

At the same meeting Director Thomas stated that the logistics of the 1986 signor affidavits or clerk certifications were “ . . . a huge burden; no question about it.” He also further stated an updated policy could “ . . . significantly reduce[d] the burden on the filer.” (App.139a). The lower courts just ignored the state’s top election official definitively saying “there is no question” that the policy imposes a “huge burden” and that other means exist that would “significantly reduce the burden”.

At the March 24, 2016 BOC meeting, attorney and Petitioner’s Executive Director Jeffrey Hank testified how the Respondents do not have an affidavit form even if a campaign would attempt to get, in the instance of Petitioner, over 200,000 affidavits from signors. (App.141a-145a).

All undue burdens aside, without a guaranteed acceptable affidavit format for individual signors, it is unreasonable for Petitioner to risk the effort and cost of attempting affidavits only to find out afterthe-fact that the affidavit form was insufficient. Michigan law often interprets the term “affidavit” to require a notary, despite the state confusingly using various forms titled affidavits that do not require a notary. The general terms “stale” and “void” are statutorily undefined and leave even those who practice election law without adequate guidance leaving a large area of discretion subject to arbitrary abuse. The burden of essentially obtaining over 200,000 signatures twice—once on a petition and once on an affidavit—is an unconstitutional burden on the right to petition.

On April 25, 2016, the BOC met again with the a stated agenda of working towards a workable rebuttable presumption policy; however, the BOC did not keep quorum, which prevented further discussion and action on an updated policy. One of the BOC members actually physically ran out of the meeting as the policy was brought up, and was chased by reporters out of the Capitol building. Respondents were on notice of the impossibility of complying with the policy and failed to take reasonable actions to avoid this dispute. This is an example of how far departed from the accepted and usual course of due process and agency proceedings things went so as to call for an exercise of this Court’s supervisory power.

At the May 12, 2016 BOC meeting, discussion continued on the policy, with Director Thomas presenting an updated proposal to the BOC, and stating that the 1986 policy is “ . . . pretty laborious process with 1500 city and township clerks and 83 county clerks.” (App.146a-147a). Director Thomas also stated how several local clerks had contacted the BOE and declined to rebut signatures. This happened to Petitioner and the Michigan Cannabis Coalition (MCC), another ballot committee that upon information and belief failed to qualify its petitions because of clerk refusal to comply with the BOC policy. (App.113a-120a).

The state created the QVF in 1997 to manage its election system. It documents all 7-million plus registered voters in the state in a centralized computer database. By law, any person in the QVF is a qualified elector. For every voter, it includes the date of registration, street address, and other data. A document of Respondent SOS, “The Michigan Qualified Voter File: A Brief Introduction,” explains the QVF:

While the QVF project was originally conceived as a response to the inefficiencies of the state’s highly decentralized voter registration system . . . the implementation of the National Voter Registration Act (NVRA) [52 U.S.C. § 20501 et seq, a/k/a the 1993 “motor voter” law] greatly heightened the need for such an initiative. . . . [T]he QVF links election officials throughout the state to a fully automated, interactive statewide voter registration database to achieve a wide variety of significant advantages. . . . 

The QVF “Plays a Vital Role in Michigan’s Election System[1]” (emphasis added):

One of the unique challenges Michigan has faced is how to effectively administer an election system made up of election officials, administrators, clerks and poll workers from 83 counties, 277 cities, 1,240 townships and 256 villages.

Add to that more than 7.4 million registered voters and the magnitude of the problem quickly becomes apparent. With such a large electorate, even straight-forward tasks such as updating voter rolls when people move to new jurisdictions become labor intensive. Unlike many other states which keep election records at the county or state level, Michigan’s voter registration and participation records are kept at the local level.

Given the size and complexity of Michigan’s election system, one of the most significant developments to its elections management has been the Qualified Voter File (QVF).

The QVF is a statewide computerized system that has made a tremendous impact. Among its many benefits, the QVF makes it easy for the Department of State to accurately and quickly forward registration information from its branch offices to local election officials. The QVF also reduces the chance for election fraud. When the QVF was first developed, more than 600,000 duplicate and ineligible registrations were removed from the state’s voter rolls.

In addition, the QVF eliminates much of the paperwork involved in tracking changes in voter registrations, making for a more effective and efficient process.

More than 400 communities are connected to the QVF server in Lansing through the Internet, including the state’s 83 county clerks who function as a QVF source for about 1,200 smaller cities and townships. The QVF has been designed to assist local election officials with many of their duties, including petition and candidate tracking; keeping an electronic election calendar; and absent voter processing.

With the implementation of the QVF, Michigan has moved its election management system into the 21st century. Under the QVF, Michigan effectively meets the needs of a growing and increasingly mobile voter population while maintaining the integrity of the election process.

The QVF was subsequently enacted to improve upon the broken and haphazard system for maintaining electoral records, in order to “enhance the uniformity and administration of elections,”; to “increase the efficiency and decrease the public cost of maintaining voter registration files . . . .”; to “increase the integrity of the voting process by creating a single qualified voter file that will permit the name of each citizen of this state to appear only once . . . ”; and to “apply technology and information . . . .. in a manner that ensures accurate and current records of each voter are maintained.” MCL 168.509(m)(b),(c),(d),(e). Further repudiating the 1986 BOC policy, MCL 168.509(o) requires that “The qualified voter file shall be the official file for the conduct of all elections held in this state on or after January 1, 1998.” Respondents are non-compliant with MCL 168.509(m) and undermining applicable purposes the legislation intends to address.

Respondents are acting arbitrarily and capriciously by enforcing the BOC policy and not using the more narrowly tailored and less burdensome legally required QVF to validate signatures. This vague policy and the failure to provide a workable method to rebut also is a regulatory taking destroying Petitioner’s reasonable investment backed expectations in it is property. The record is clear that the BOC policy is not reasonable and bears no rational relation to how the state canvasses petitions.

 

CONCLUSION & RELIEF REQUESTED

This case is not moot because Petitioner’s petitions are eligible until the November 2018 election. A matter of public interest is being kept from Michigan’s 7.4 million-plus voters, whom have all been irreparably harmed, yet can still receive some prospective measure of relief.

For the reasons stated above, the Court should issue a writ of certiorari.

                                 Respectfully submitted,

J. NICHOLAS BOSTIC

COUNSEL OF RECORD

J. NICHOLAS BOSTIC, PLLC

909 N. WASHINGTON SQUARE

LANSING, MI 48906

(517) 706-0132

BARRISTERBOSTIC@ATT.NET

JEFFREY A. HANK

HANK LAW PLLC

101 S. WASHINGTON SQUARE

SUITE 200

LANSING, MI 48933

(855) 426-5529

JAH@HANKLEGAL.COM

COUNSEL FOR PETITIONER

DECEMBER 6, 2016

 

Appendix-i

APPENDIX TABLE OF CONTENTS

Order of the Supreme Court of Michigan

         Denying Requested Relief

      (September 7, 2016) ............................................ 1a

Order of the Supreme Court of Michigan

      (September 7, 2016) ............................................ 2a

Order of the Court of Appeals of the

        State of Michigan (September 7, 2016) ............. 4a

Opinion and Order of the Michigan

        Court of Claims (August 23, 2016) .................... 5a

Relevant Constitutional and

      Statutory Provisions ......................................... 23a

BOC Policy on Rebutting

      Presumption of Staleness ................................. 28a

Appellant MILegalize’s Emergency Application for Leave to Appeal Before a Decision of the Court of Appeals Resolution of Appeal

         Requested by September 6, 2016,

        Relevant Excerpts (August 30, 2016) .............. 38a

Appellant’s Emergency Application

        Relevant Excerpts (August 30, 2016) .............. 59a

Brief in Support of Mandamus and

        Declaratory and Injunctive Relief,

          Relevant Excerpts ............................................ 81a Appendix-ii

APPENDIX TABLE OF CONTENTS (Continued)

Complaint to Show Cause, Mandamus, Request for Declaratory, Injunctive and Other Relief

Relevant Excerpts ............................................ 99a

Freedom of Information

      Related Correspondence ................................. 113a

Board of State Canvassers Meeting,

       Relevant Excerpts .......................................... 123a

Affidavits

Affidavit of Matthew Abel

               (July 15, 2016) .......................................... 148a

Affidavit of Alan Fox

               (June 1, 2016) ........................................... 150a

Affidavit of Chris Silva

                (June 16, 2016) ......................................... 152a

Affidavit of Nicholas Zettell

                (June 16, 2016) ......................................... 154a

 

 

ORDER OF THE SUPREME COURT OF

MICHIGAN DENYING REQUESTED RELIEF

(SEPTEMBER 7, 2016)

 

 

MICHIGAN SUPREME COURT

LANSING, MICHIGAN

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE, A/K/A MILEGALIZE,

Plaintiff,

v.

SECRETARY OF STATE,

BUREAU OF ELECTIONS, and

BOARD OF STATE CANVASSERS,

Defendants.

________________________

SC: 154334

Before: Robert P. YOUNG, JR., Chief Justice,

Stephen J. MARKMAN, Brian K. ZAHRA,

Bridget M. MCCORMACK, David F. VIVIANO,

Richard H. BERNSTEIN, Joan L. LARSEN, Justices

 

 

On Order of the Court, the Complaint for superintending control is considered, and relief is DENIED, because the Court is not persuaded that it should grant the requested relief.

 

 

ORDER OF THE

SUPREME COURT OF MICHIGAN

(SEPTEMBER 7, 2016)

 

 

MICHIGAN SUPREME COURT

LANSING, MICHIGAN

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW

REFORM COMMITTEE, A/K/A MILEGALIZE,

Plaintiff-Appellant,

v.

SECRETARY OF STATE, BUREAU OF

ELECTIONS, and BOARD OF STATE CANVASSERS,

Defendants-Appellees.

________________________

154359 & (4)(5)

SC: 154359; COA: 334560

Ct of Claims: 16-000131-MM

Before: Robert P. YOUNG, JR., Chief Justice Stephen J. MARKMAN, Brian K. ZAHRA, Bridget

M. MCCORMACK, David F. VIVIANO, Richard H.

BERNSTEIN, Joan L. LARSEN, Justices.

 

 

On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal prior to decision by the Court of Appeals is treated as an application for leave to appeal the September 7, 2016 order of the Court of Appeals. The application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion for consolidation is DENIED.

 

ORDER OF THE COURT OF APPEALS

OF THE STATE OF MICHIGAN (SEPTEMBER 7, 2016)

 

 

COURT OF APPEALS

STATE OF MICHIGAN

________________________

MICHIGAN COMPREHENSIVE

CANNABIS LAW REFORM COMMITTEE

v.

SECRETARY OF STATE ________________________

Docket No. 334560

LC No. 16-000131-MM

Before: Patrick M. METER Presiding Judge

Donald S. OWENS, Michael F. GADOLA, Judges.

 

 

The Court orders that the motion for immediate consideration is GRANTED.

The application for leave to appeal is DENIED for lack of merit in the grounds presented.

 

OPINION AND ORDER OF THE

MICHIGAN COURT OF CLAIMS

(AUGUST 23, 2016)

 

 

STATE OF MICHIGAN

COURT OF CLAIMS

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE, A/K/A MILEGALIZE,

Plaintiff,

v.

MICHIGAN SECRETARY OF STATE, 

DIRECTOR OF BUREAU OF ELECTIONS,  and BOARD OF STATE CANVASSERS,

Defendants.

________________________

Case No. 16-000131-MM

Before: Hon. Stephen L. BORRELLO Judge Court of Claims

 

 

Plaintiff brings this action challenging defendants’ application of MCL 168.472(a), as amended by 2016 PA 142,[2] to plaintiff’s legislative initiative petition.

Enacted in 1973, MCL 169.472a provided, with respect to signatures on petitions to initiate legislation:

It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if the signature was made more than 180 days before the petition was filed with the office of the secretary of state.

This version of the statute was in effect when plaintiff filed its petitions with defendant Secretary of State on June 1, 2016. MCL 168.472(a) established a rebuttable presumption of staleness for petition signatures that were obtained more than 180 days before the petition was filed with defendant Secretary of State. The Board of State Canvassers (the Board) determined that of the 354,000 petition signatures that plaintiff submitted, more than 200,000 were collected more than 180 days before the petition was submitted to defendant Secretary of State, thereby rendering them, in the opinion of the Board, stale and void under MCL 168.472a. Based on this ruling, plaintiff asks this Court to declare the statute, as well as defendants’ procedure for rebutting the presumption, unconstitutional and enjoin defendants from applying the statute and defendants’ procedures in enforcing same. Plaintiff also seeks a writ of mandamus ordering defendants to qualify the initiative for the November 2016 general election ballot. The

                                                      

The signature on a petition that proposes an amendment to the constitution or is to initiate legislation shall not be counted if the signature was made more than 180 days before the petition is filed with the office of the secretary of state.

Court has reviewed the parties cross motions for summary disposition and for the reasons set forth in this opinion, defendants’ motion for summary disposition is GRANTED.

    I.     Background

Plaintiff is a ballot question committee proposing legislation that would broadly legalize the use of marijuana in the State of Michigan.[3] On June 1, 2016, plaintiff submitted a legislative initiative petition to the Secretary of State, to place the proposal on the ballot for the November 2016 election. It is undisputed that the minimum number of signatures needed is 252,523[4] and that plaintiff collected approximately 345,000 signatures.

Following receipt of the signatures, the Board denied plaintiff’s petition because the Board found that more than 200,000 of the signatures were obtained more than 180 days before plaintiff filed the petition. At that time, MCL 168.472a provided that a signature on a petition to initiate legislation that was made more than 180 days before the petition was filed was rebuttably presumed to be stale and void. The Board’s written procedure provided that the presumption could be rebutted by proof that the signer was registered to vote when the signer affixed their signature to the petition, and that the signer was registered to vote in Michigan within the 180-window before the petition was filed. To establish the latter element, the Board required proof by affidavit or certificate from the signer or from the appropriate county clerk. Plaintiff attempted to rebut the presumption of staleness of 137,029 signatures by submitting an affidavit of validity based on the qualified voter file (QVF). The Board deemed plaintiff’s affidavit insufficient because the QVF did not establish that the persons who executed the presumptively stale signatures were properly registered to vote at the time they signed the petitions. Because plaintiff failed to rebut the presumption of staleness of a significant portion of the signatures, the Board determined that the petition lacked a sufficient number of valid signatures to meet the minimum requirement for placement on the November 2016 ballot.

Plaintiff, through their counsel, thereafter brought this action seeking from this Court a writ of mandamus and declaratory and injunctive relief. Additionally, plaintiff asks this Court to declare MCL 168.472a and the Board’s policy unconstitutional, to enjoin defendants from applying the statute and the policy, and to order defendants to certify its petition as valid and qualify the initiative for placement on the November 2016 election ballot.

In response, defendants, through their respective counsel, moved for summary disposition under MCR

2.116(C)(4) (lack of jurisdiction), (C)(5) (lack of standing) (C)(7) (immunity) and (C)(8) (failure to state a claim). Thereafter, plaintiff filed a response seeking summary disposition in its favor.

II. Standard for Writ of Mandamus

Plaintiff has the burden of establishing entitlement to the extraordinary remedy of a writ of mandamus. Wilcoxon v. City of Detroit Election Comm., 301 Mich. App. 619, 632; 838 N.W.2d 183 (2013). In order to prevail in this action, plaintiff must establish that (1) it has a clear legal right to the performance of the duty sought to be compelled, (2) the defendants have a clear legal duty to perform such act, (3) the act is ministerial in nature such that it involves no discretion or judgment, and (4) plaintiff has no other adequate legal or equitable remedy. Id. An act is ministerial if it is “prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Citizens Protecting Michigan’s Constitution v. Sec. of State, 280 Mich. App. 273, 286;

761 N.W.2d 210, aff’d 482 Mich. 960 (2008), quoting Carter v. Ann Arbor City Attorney, 271 Mich. App. 425, 439; 722 N.W.2d 243 (2006).

III. Constitutional Challenge to MCL 168.472a

Plaintiff argues that the former MCL 168.472a impermissibly infringed on the right to utilize the initiative process under Const. 1963, art. 2, § 9. Plaintiff also argues that the statute violated its rights under the First Amendment, Fifth Amendment and Fourteenth Amendment of the Michigan and United

States Constitutions.

Const. 1963, art. 2, § 9 governs the legislative initiative process, and requires the Legislature to implement its provisions. Article 2, § 9 of the state constitution governs statutory initiatives, and requires the Legislature to implement its provisions. Section 9 states in pertinent part:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. . . . To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.

*  * * 

Initiative; duty of legislature, referendum

Any law proposed by initiative shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided.

*  * * 

Legislative implementation

The legislature shall implement the provisions of this section. [Const. 1963, art. 2, § 9 (emphasis added).]

Central to cases challenging the constitutionality of MCL 168.472(a) is the question of what authority if any, the Michigan Constitution grants to the legislature to develop rules or restrictions to the ballot initiative process. A brief review of case law on this issue illustrates something of a transformation in the law over the past 45 years.

In Wolverine Golf Club v. Sec. of State, 384 Mich. 461; 185 N.W.2d 392 (1971), plaintiffs sought to place an initiative pertaining to daylight savings time on the ballot for the November 1970 election. At that time, MCL 168.472 required petitions to be filed at least 10 days before the start of the legislative session. When the plaintiffs inquired about submitting their petition in February, the deadline had already passed because the Legislature was already in session. Because plaintiffs were precluded from utilizing the initiative process in the November 1970 election, they brought a mandamus action challenging the statute and our Supreme Court struck down the statute, ruling in part, that such a restriction on the use of the initiative process was not within the Legislature’s authority. Our Supreme Court determined that the statute was not consistent with implementation of the constitutional provision, reasoning:

We do not regard this statute as an implementation of the provision of Const. 1963, art. 2, § 9. We read the stricture of that section, ‘the legislature shall implement the provisions of this section,’ as a directive to the legislature to formulate the process by which initiative petitioned legislation shall reach the legislature or the electorate. This constitutional procedure is self-executing.

As pointed out by Judge Lesinski in the opinion below, 24 Mich. App. 711, 725, 180 N.W.2d 820, 8266 (1970):

‘it is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v. St Clair County Election Commission (1952), 334 Mich. 258, 54 N.W.2d 425; Hamilton v. Secretary of State (1924), 227 Mich. 111, 125, 198 NW 843, 848:

“The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provision is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.”’

Whether we view the ten day filing requirement in an historical context or as a question of constitutional conflict, the conclusion is the same—the requirement restricts the utilization of the initiative petition and lacks any current reason for so doing.

We hold that the petitioners were entitled to file their initiative petitions without regard to the ten day before session requirement, and since the Board of State Canvassers has notified the Secretary of the Senate and the Clerk of the House of Representatives of the sufficiency of such petitions, petitioners are entitled to have the matter submitted to the legislature now in session. 384 Mich. at 466467.

Then, in 1973, the Legislature enacted MCL 168.472a. One year later, the attorney general issued an opinion (OAG) proclaiming the statute to be unconstitutional. 1974 OAG 4813. Although an opinion of the attorney general is binding on state agencies and officers, such opinions do not have the force of law and are not binding on the courts. Cox v. D’Addario, 225 Mich. App. 113, 126; 570 N.W.2d 284 (1997); Michigan ex rel Oakland Co Prosecutor v. Dep’t. of Corrections, 199 Mich. App. 681, 691; 503 N.W.2d 465, lv den 444 Mich. 852 (1993). Contrary to the 1973 OAG, in

Citizens for Capital Punishment v. Sec. of State, 414 Mich. 913 (1982), the Michigan Supreme Court issued an order upholding the legislature’s enactment of statutes governing the form of petitions and imposing certain signature requirements for proposing constitutional amendments and initiating legislation. The plaintiffs challenged the defendant’s rejection of 29 signatures as invalid on plaintiffs’ petition to submit a proposed constitutional amendment to the electorate. The Court relied on the language in Const. 1963, art. 12, § 2, that “[a]ny such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.” Our Supreme Court concluded that by enacting the statutes, “the Legislature has provided those details as contemplated by art. 12, § 2 of the 1963 Constitution.” 414 Mich. at 914. The Court went on to state that the statutes were constitutional:

The plaintiffs have also argued that to the extent that there are requirements for valid signatures other than that the signers be registered electors, those other requirements are unconstitutional. However, those requirements, in essence, are authorized by the constitution itself, which specifically directs that ‘any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.’ The Legislature has set forth the form of the petition. In enacting these statutory requirements, therefore, the Legislature has followed the dictates of the constitution an action which cannot, in this instance, be said to be unconstitutional. Furthermore, the requirements of these statutes serve to further the important state interest of insuring the purity of elections. Citizens for Capital Punishment, 414 Mich. at 915.

Our Supreme Court next issued what this Court considers the dispositive ruling on the issues raised in this case. In Consumers Power Co v. Attorney General, 426 Mich. 1; 392 N.W.2d 513 (1986), the plaintiffs sought a ruling that MCL 168.472a was constitutional. The trial court and Court of Appeals upheld the constitutionality of the statute, and our Supreme Court affirmed. Our Supreme Court based its decision, in part, on the changes to the provision governing proposed constitutional amendments between the 1908 and 1963 Constitutions. As previously quoted, Const. 1963, art. 12, § 2 includes the following language regarding petitions that propose a constitutional amendment: “Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.” The predecessor provision in the 1908 constitution contained no such language. Our Supreme Court found this change significant, and determined that the “call for legislative action” was authority for MCL 168.472a, providing for a rebuttable presumption of staleness of signatures after 180 days:

Of extreme importance to resolution of the present controversy is focus on the absence of a call for legislative action in Const. 1908, art. 17, § 2 and the clear presence of one in Const. 1963, art. 12, § 2 as evidenced in the sentence:

“Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law.”

The defendants strenuously argue that the above-quoted sentence found in art. 12, § 2 should not be construed to authorize the Legislature to enact a law which provides for the staleness of signatures, subject to a rebuttable presumption. We disagree.

The language just quoted from art. 12, § 2 of our constitution clearly authorizes the Legislature to prescribe by law for the manner of signing and circulating petitions to propose constitutional amendments. 426 Mich. at 5-6.

In Consumers Power Co, our Supreme Court acknowledged that it had previously interpreted art. 12, § 2 to be self-executing in Ferency v. Secretary of State, 409 Mich. 569; 297 N.W.2d 544 (1980). But our

Supreme Court also noted that two years later, in

Citizens for Capital Punishment v. Sec. of State, it upheld the Legislature’s enactment of statutes prescribing the form of petitions.

In this case, when plaintiff filed its petition, MCL 168.472a provided with respect to petition signatures to initiate legislation:

It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if the signature was made more than 180 days before the petition was filed with the office of the secretary of state.

In Consumers Power Co, a constitutional challenge to the statute’s rebuttable presumption was raised with respect to a petition proposing a constitutional amendment under art. 12, § 2. Our Supreme Court held:

[T]he Legislature has followed the dictates of the constitution in promulgating MCL 168.472a. The statute sets forth a requirement for the signing and circulating of petitions, that is, that a signature which is affixed to a petition more than 180 days before that petition is filed with the Secretary of State is rebuttably presumed to be stale and void. The purpose of the statute is to fulfill the constitutional directive of art. 12, § 2 that only the registered electors of this state may propose a constitutional amendment. 426 Mich. at 7-8.

This Court has carefully considered the arguments of plaintiff relative to this and all other issues raised. This Court finds that plaintiffs have made compelling arguments relative to whether our Supreme Court properly decided Consumers Power Co. Ultimately though, this Court is legally bound to follow precedent set forth by our Supreme Court. And in Consumers Power Co, our Supreme Court clearly held the very provisions which plaintiff seeks this Court to hold unconstitutional constitutional. 426 Mich. at 7-8. In so holding, this Court also notes that plaintiff made a thoughtful effort to distinguish Consumers Power Co on the basis that it involved a constitutional amendment initiative, and this case involves a legislative initiative. Plaintiff highlights the difference in language between art. 12, § 2 and art. 2, § 9, the respective constitutional provisions for the initiatives, and urges this Court to adopt a narrow interpretation. However, contrary to plaintiff’s characterization of

Consumers Power Co, our Supreme Court did not limit its holding that the rebuttable presumption contained within MCL 168.472a was constitutional merely because the case involved a constitutional amendment proposal. Rather, our Supreme Court held that the plain language of MCL 168.472a applies to signatures on petitions both to amend the constitution and to initiate legislation. Additionally, our Supreme Court expressly stated, and without qualification, that “this statute is constitutional.” Consumers Power Co, 426 Mich. at 10.

Lastly, the plain language of art. 2, § 9 and our Supreme Court’s reasoning in Consumers Power Co and Citizens for Capital Punishment compel the same result reached in this case. Art. 2, § 9 requires petitions signed by a certain number of registered electors in order to invoke the initiative process. It also requires the Legislature to implement its provisions. As our Supreme Court recognized, the purity of elections is an important state interest that is furthered by the rebuttable presumption that signatures more than 180 days old are stale and void.

Consumers Power Co, 426 Mich. at 7; Citizens for Capital Punishment, 414 Mich. at 915. The statute is also consistent with the Court’s interpretation of the purpose of the implementation directive in Wolverine Golf Club, “to formulate the process by which initiative petitioned legislation shall reach the legislature or the electorate[.]” Wolverine Golf Club, 384 Mich. at 466. And as Consumers Power Co illustrates, the determination in Wolverine Golf Club that art. 2, § 9 is self-executing should not preclude the Legislature’s enactment of a statute imposing a rebuttable presumption of staleness for signatures collected more than 180 days before the submission of the petition. Accordingly, plaintiff is not entitled to relief on this issue.

IV. Constitutional Challenge to the Board’s 1986 Procedure

Plaintiff challenges the constitutionality of the Board of State Canvassers’ procedure for rebutting the presumption of staleness of petition signatures. In 1986, the Board adopted the following procedure:

The proponent of an initiative petition could rebut the presumption posed by MCL

168.472a by:

(1)      Proving that the person who executed the signature was properly registered to vote at the time the signature was executed and

(2)      Proving with an affidavit or certificate of the signer or appropriate clerk that that the signer was registered to vote in Michigan within the “180 day window period” and further, that the presumption posed under MCL 168.472a could not be rebutted through the use of a random sampling process.

Plaintiff argues that this procedure violates their First, Fifth and Fourteenth Amendment rights, because it is not narrowly tailored, is unduly burdensome, and is arbitrary and capricious.

The Court finds that plaintiff’s constitutional arguments are fundamentally an additional and repetitive challenge to the rebuttable presumption of the former MCL 168.472a. As previously discussed, the presumption itself was held to be constitutional in Consumers Power Co. Hence, plaintiff is left to argue that this Court should strike down the Board’s procedure as bad policy to be replaced with the use of the QVF.

The record reveals that following hearings before the Board, a change to the policy was voted on and failed to pass with a 2-2 vote. Plaintiff contends that the QVF would be preferable to the Board’s current procedure. Plaintiff additionally argues that it rebutted the presumption of staleness by referring the Board to the qualified voter file to verify the 137,000 signatures in question. However, by doing so plaintiff is essentially trying to shift the burden of rebutting the presumption to the Board. This argument contradicts the rule of law that the party seeking to rebut the presumption bears the burden.

Additionally, plaintiff’s preference for a different procedure does not, by itself, make the Board’s adopted procedure unconstitutional. Moreover, it is imperative when deciding constitutional questions that each branch of government embraces and understands the limits of their respective constitutional powers. Relative to the policy considerations complained of by plaintiff, in the absence of any definitive case law or statute so holding, plaintiff has failed to establish that this Court possesses the legal or constitutional authority to dictate to the Board of State Canvassers a particular methodology that it must employ in fulfilling its canvassing duties. Accordingly, plaintiff is not entitled to relief on this issue.

  1. 2016 PA 142

The Legislature recently enacted 2016 PA 142, amending MCL 168.472a to remove the rebuttable presumption of staleness of signatures to initiate legislation. MCL 168.472 now provides: “The signature on a petition that proposes an amendment to the constitution or is to initiate legislation shall not be counted if the signature was made more than 180 days before the petition is filed with the office of the secretary of state.” The amendment became effective June 7, 2016.

This Court has searched the record for any evidence wherein the Board or any governmental agency sought to enforce on plaintiffs any provision of 2016 PA 142. In the absence thereof, plaintiff fails to state a claim for declaratory relief regarding the constitutionality of MCL 168.472a as amended. No case of actual controversy exists because the statute as amended was not applied to plaintiff’s petition. MCR 2.605(A)(1); Shavers v. Attorney General, 402 Mich. 554, 588; 267 N.W.2d 72 (1978) (this court’s authority to enter a declaratory judgment depends on the existence of a case of actual controversy). Simply stated, plaintiff has failed to present any evidence that any entirety or person sought to enforce against plaintiff any provision of 2016 PA 142. In the absence thereof, there is no actual controversy for this Court to decide. Shavers, 402 Mich. at 588. Furthermore, although the statute might be applied to plaintiff in the future, any challenge to the statute is not ripe for adjudication at this time. Huntington Woods v. Detroit, 279 Mich. App. 603, 615-616; 761 N.W.2d 127 (2008) (the ripeness doctrine prevents the adjudication of hypothetical or contingent claims before an actual injury has been sustained). Consequently, this Court is devoid of the authority to determine the constitutionality of MCL 168.472a as amended.

  1. Conclusions

After having considered the arguments presented by their respective parties through their counsel, this Court finds that based on our Supreme Court’s decision in Consumers Power Co v. Attorney General, 426 Mich. 1; 392 N.W.2d 513 (1986), defendants have no clear legal duty to count the presumptively stale and void petition signatures that plaintiff submitted. Additionally, the record reveals that plaintiff failed to rebut the stated presumption contained in MCL 168.472a, said presumption being consistent with the Board’s written procedures. As a consequence thereof, plaintiff’s petitions lacked the minimum number of signatures and the Board had no clear legal duty to place the initiative on the ballot.

IT IS HEREBY ORDERED that defendants’ motion for summary disposition is GRANTED. No costs are awarded a public question being involved. City of Bay City v. Bay County Treasurer, 292 Mich. App. 156, 172; 807 N.W.2d 892 (2011).

This order resolves the last pending claim and closes the case.

 

/s/ Stephen L. Borrello           Judge Court of Claims

 

Dated: August 23, 2016

 

 

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

 

 

I.  CONSTITUTIONAL PROVISIONS

A. Federal Constitutional Provisions

  1. U.S. Const., amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

  1. U.S. Const., amend. V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  1. U.S. Const., amend. XIV, § 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. B. Michigan Constitutional Provisions

1. Michigan Art. II, § 9, 1963 Constitution Initiative and Referendum; Limitations; Appropriations; Petitions

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. The power of referendum does not extend to acts making appropriations for state institutions or to meet deficiencies in state funds and must be invoked in the manner prescribed by law within 90 days following the final adjournment of the legislative session at which the law was enacted. To invoke the initiative or referendum, petitions signed by a number of registered electors, not less than eight percent for initiative and five percent for referendum of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.

II.  STATUTES

  1. MCL 168.472a

It shall be rebuttably presumed that the signature on a petition that proposes an amendment to the constitution or is to initiate legislation, is stale and void if the signature was made more than 180 days before the petition was filed with the office of the secretary of state.

  1. MCL 168.476

Petitions; canvass by board of state canvassers; use of qualified voter file; hearing upon complaint; investigations; completion date; disposition of challenges; report.

Sec. 476.(1)

Upon receiving notification of the filing of the petitions, the board of state canvassers shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered electors. The qualified voter file shall be used to determine the validity of petition signatures by verifying the registration of signers and the genuineness of signatures on petitions when the qualified voter file contains digitized signatures. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote in the city or township designated on the petition, there is a rebuttable presumption that the signature is invalid. If the board is unable to verify the genuineness of a signature on a petition using the digitized signature contained in the qualified voter file, the board may cause any doubtful signatures to be checked against the registration records by the clerk of any political subdivision in which the petitions were circulated, to determine the authenticity of the signatures or to verify the registrations. Upon request, the clerk of any political subdivision shall cooperate fully with the board in determining the validity of doubtful signatures by rechecking the signature against registration records in an expeditious and proper manner.

  1. MCL 168.961(6)

The qualified voter file shall be used to determine the validity of recall petition signatures by verifying the registration of signers. If the qualified voter file indicates that, on the date the elector signed the recall petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the recall petition, the elector was not registered to vote in the city or township designated on the recall petition, there is a rebuttable presumption that the signature is invalid . . . 

  1. MCL 168.961a(4)

The qualified voter file may be used to determine the validity of a challenged petition signature appearing on a recall petition by verifying the registration of the signer. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote in the city or township designated on the petition, there is a rebuttable presumption that the signature is invalid.

  1. MCL 168.482(5) 

The following warning shall be printed in 12point type immediately above the place for signatures, on each part of the petition:

WARNING. A person who knowingly signs this petition more than once, signs a name other than his or her own, signs when not a qualified and registered elector, or sets opposite his or her signature on a petition, a date other than the actual date the signature was affixed, is violating the provisions of the Michigan election law.

 

 

BOC POLICY ON

REBUTTING PRESUMPTION OF STALENESS

 

 

MINUTES OF MEETING

OF THE BOARD OF STATE CANVASSERS

(AUGUST 8, 1986)

________________________

A meeting of the Board of State Canvassers was held on August 8, 1986 in room 124 of the Mutual Building, 208 North Capitol Avenue, Lansing, Michigan. Those present were: Stephen C. Bransdorfer, Chairman; Michael I. Pyne, Vice-Chairman; William Gnodtke, member; Bernice Shields, member; Christopher M. Thomas, Secretary; Bradley S. Wittman, Elections Division staff member; Gary P. Gordan, Assistant Attorney General; Deborah A. Devine, Assistant Attorney General; and Phyllis Mellon, Director of the Department’s Research Division.

The meeting was called to order by Mr. Bransdorfer at 3:15 p.m. Mr. Bransdorfer instructed the Secretary to file the Notice of Meeting and the Affidavit of Posting thereof.

The Chairman asked if there was a motion to approve the minutes of the meeting of April 21, 1986. Mr. Pyne moved that the minutes be approved as submitted. Ms. Shields supported the motion and it carried 3-0. (Mr. Gnodtke abstained from the vote as, his appointment to the Board came after the April 21, 1986 meeting.)

The Chairman asked if there was a motion to approve the minutes of the meeting of June 25, 1986. Ms. Shields moved that the minutes be approved as submitted. Mr. Gnodtke supported the motion and it carried 4-0.

The Secretary presented to the Board 72 initiative petition sheets filed on July 7, 1986 by the Michigan Citizens Lobby, 106 W. Allegan Street, Lansing, Michigan 48933. The Secretary explained that a determination as to the validity of the petition sheets was required as the address listed by the circulator of the sheets raised an issue never before addressed by the Board. After distributing several of the petition sheets to the Board members for inspection, the Secretary explained that the circulator of the sheets, Amanda Green, listed her address as “Oakland University, Hamlin Hall.” The Secretary further explained that the staff had determined that Ms. Green did not have a street address and that her registration record, held in the City of Auburn Heights, showed her address to be “Oakland University, 101A Hamlin Hall.” The Secretary stated that the staff sought the Board’s determination as to whether “Oakland University, Hamlin Hall” constituted a sufficient address on the circulator certificates completed by Ms. Green. The Secretary further stated that the issue appeared to be whether the “101A” portion of Ms. Green’s address was an analogous to a street number or an apartment number.

John Pirich, an attorney representing Detroit Edison and Consumers Power, addressed the Board to argue that the 72 petition sheets should be rejected as Ms. Green’s room number was required to complete her address on the circulator certificates. Joseph Tuchinsky, Executive Director of the Michigan Citizens Lobby, addressed the Board to argue that the 72 petition sheets should be accepted as under the circumstances involved “Oakland University, Hamlin Hall” constituted a sufficient address on the circulator certificates.

After the completion of the arguments, Mr. Gnodtke moved that the Board reject the 72 petition sheets in question as the address listed by the circulator on the petition sheets was not consistent with the circulator’s registration address. Mr. Pyne supported the motion and it carried 3-1 with Mr. Bransdorfer casting the “no” vote. Mr. Bransdorfer directed the staff to use the Board’s determination as a guide when reviewing petitions in the future.

The Secretary presented to the Board 172 initiative petition sheets filed on July 7, 1986 by L. Brooks Patterson, Prosecuting Attorney, Oakland County, 1200 N. Telegraph Road, Pontiac, Michigan 48820. The Secretary explained that a determination as to the validity of the petition sheets was required as the signatures on the sheets raised an issue never before addressed by the Board. After distributing several of the petition sheets to the Board members for inspection, the Secretary explained that the body of each petition sheet contained a single printed name which matched the name of the circulator of the sheet. The Secretary further explained that when executing the circulator’s certificate, the person signed his or her name in cursive. The Secretary stated that a printed signature was normally accepted under a petition “face review” conducted by the staff as many individuals do not sign their name in cursive. The Secretary further stated that the staff sought the Board’s determination as to whether the 172 petition sheets bearing the 172 printed signatures were acceptable as in each case, the circulator’s certificate gave evidence that the signer did not, in fact, print his or her signature.

Michael Modelski, an attorney representing Citizens for Capital Punishment, addressed the Board to argue that the 172 petition sheets should be accepted as valid by the Board. Tom Downs, an attorney representing the Coalition Against Capital Punishment, addressed the Board to argue that the 172 petition sheets should be rejected by the Board.

After the completion of the arguments, Mr. Pyne suggested that the Board table the matter until later in the meeting. The Chairman accepted Mr. Pyne’s suggestion and announced that the Board would take up the next item on the agenda—the implementation of the following section of Michigan election law:

168.472a. It shall be rebuttably presumed that the signature on a petition which proposes an amendment to the constitution or is to initiate legislation, is stale and void if it was made more than 180 days before the petition was filed with the office of the secretary of state.

The Secretary stated that as requested by the Board at its meeting of July 31, 1986, the staff counted the number of signatures executed between November 2, 1982 and January 7, 1986 (“old signatures”) and between January 8, 1986 and July 7, 1986 (“new signatures”) on the initiative petitions filed by the Michigan Citizens Lobby and L. Brooks Patterson. The Secretary further stated that under the staff’s count, the valid initiative petition sheets filed by the Michigan Citizens Lobby contained 314,614 “old signatures” and 55,572 “new signatures” and that the valid initiative petition sheets filed by L. Brooks Patterson contained 170,753 “old signatures” and 171,133 “new signatures.”

The Chairman stated that before MCL 168.472a could be implemented, the following three issues had to be resolved by the Board: (1) Who is responsible for rebutting the presumption that the “old signatures” on the initiative petitions are “stale and void”? (2) What is meant by the phrase “stale and void”? and (3) What procedure should be established for rebutting the presumption that the “old signatures” are stale and void?

The following persons assembled before the Board to speak on the three issues: John Pirich and Mike Hodge, attorneys representing Detroit Edison and Consumers Power; Tom Downs an attorney representing the Coalition Against Capital Punishment; Michael Modelski, an attorney representing the Citizens for Capital Punishment; and David Shaltz, an attorney representing the Michigan Citizens Lobby.

The Chairman stated that the proponents and the challengers of the initiative petitions filed by the Michigan Citizens Lobby and L. Brooks Patterson could designate one spokesperson to address the Board on the issues which needed to be resolved to implement MCL 168.472a.

The Board and the persons assembled before the Board discussed the first issue at length, i.e., who is responsible for rebutting the presumption that the “old signatures” on an initiative petition are “stale and void.”

At the conclusion of the discussion, Mr. Pyne moved that the Board find the petition submitted by the Michigan Citizens Lobby and the petition submitted by L. Brooks Patterson insufficient due to Judge Bell’s July 18 ruling that MCL 168.472a was constitutional and that further, the Board not place the two issues on the November 4, 1986 general election ballot unless a sufficient number of “old signatures” were proven valid as provided under MCL 168.472a. Ms. Shields supported the motion and it carried 4-0.

In a second motion, Mr. Pyne moved that it is the responsibility of the filers of the two initiative petitions to rebut the presumption that “old signatures” appearing on the petition are “stale and void.” Ms. Shields supported the motion and it carried 4-0.

The Board and the persons assembled before the Board next discussed the second issue at length, i.e., the meaning of the phrase “stale and void.”

At the conclusion of the discussion, Mr. Gnodtke moved that the proponent of an initiative petition could rebut the presumption that a signature affixed to the petition more than 180 days before the petition was filed is “stale and void” by showing that the person who executed the signature was properly registered to vote at the time the signature was affixed to the petition. Mr. Bransdorfer supported the motion. With the motion on the table, the Chairman recessed the meeting for a break at 5:05 p.m.

At 5:40 p.m. the Chairman called the meeting back to order. Mr. Gnodtke withdrew the motion he made prior to the recess and moved that the proponent of an initiative petition could rebut the presumption posed by MCL 168.472a, i.e., that a signature affixed to an initiative petition more than 180 days before the filing of the petition is “stale and void,” by proving that the person who executed the signature was properly registered to vote at the time the signature was executed. Mr. Pyne added that to rebut the presumption posed by MCL 168.472a, the proponent of an initiative petition would also have to show that the signer was registered to vote “within the 180 day window period.” Mr. Pyne further stated that the proponents of an initiative petition could prove that a signer was registered to vote “within the 180 day window period” by producing an affidavit or certificate executed by the signer or the clerk of the city or township in which the signer was registered. Mr. Bransdorfer clarified that under the motion, a random sampling process could not be used to rebut the presumption posed by MCL 168.472a. Mr. Bransdorfer further clarified that under the motion, the Board would consider the presumption posed by MCL 168.472a successfully rebutted even if it was shown that the signer’s city or township of registration at the time the petition was signed differed from the signer’s city or township of registration during the “180 day window period.”

Mr. Bransdorfer stated that it had been moved that the proponent of an initiative petition could rebut the presumption posed by MCL 168.472a by (1) proving that the person who executed the signature was properly registered to vote at the time the signature was executed and (2) proving with an affidavit or certificate of the signer or appropriate clerk that the signer was registered to vote in Michigan within the “180 day window period” and further, that the presumption posed under MCL 168.472a could not be rebutted through the use of a random sampling process. Mr. Gnodtke assented that his motion was properly stated. Mr. Bransdorfer supported the motion and it carried 4-0.

Mr. Bransdorfer stated that while the Board had always accepted a petition signature as valid if the signer was registered to vote at the time the petition was signed, it was clear that the state legislature intended in its enactment of MCL 168.472a that an additional standard be imposed on signatures affixed to an initiative petition more than 180 days before the filing of the petition. Mr. Bransdorfer further stated that this was why the Board was stipulating that to rebut the presumption posed by MCL

168.472a, the proponent of an initiative petition had to prove that the signer was registered to vote both at the time the petition was signed and within the “180 day window period.” Mr. Bransdorfer explained that if the Board did not impose the second standard, i.e., that it be shown that the signer was registered to vote within the “180 day window period,” MCL 168.472a would not have any clear effect.

Mr. Pirich addressed the Board to request that it accept sixteen boxes of signature challenges he had brought to the meeting. The Board agreed to accept the challenges.

The Secretary again presented to the Board the 172 initiative petition sheets filed by L. Brooks Patterson which the Board had discussed earlier in the meeting. The staff recommended that the sheets be accepted. A motion was made to accept the petition sheets. The motion was supported and it carried 4-0.

Tom Downs addressed the Board to request that it order the preparation of a random signature sample for the initiative petition filed by L. Brooks Patterson. Mr. Downs explained that he was making the request as time constraints could prohibit the preparation and completion of a random signature sample should Judge Bell’s July 18, 1986 ruling be reversed by the Court of Appeals. The Board did not entertain a motion on Mr. Down’s request. In a second request, Mr. Downs asked the Board to sample the initiative petition filed by L. Brooks Patterson for duplicate signatures. The Board did not entertain a motion on Mr. Down’s second request. In a third request, Mr. Downs asked the Board to direct the staff to provide his clients with a computer generated print-out of signature designations that could be used to sample the petition filed by L. Brooks Patterson. The Board indicated that Mr. Down’s third request could be honored under arrangements made with and at the discretion of the the Elections Division staff.

There being no further business to address, the Chairman adjourned the meeting at 6:06 p.m.

The following position papers submitted to the Board prior to and at its meeting of August 8, 1986 are incorporated into these minutes by reference: a paper dated August 4, 1986 submitted by Brian K. Johnson; a paper dated August 4, 1986 submitted by L. Brooks Patterson; papers dated August 4 and August 8, 1986 submitted by Dorean Koenig, Tom Downs, and Eugene Wanger; a paper dated August 4, 1986 submitted by David Shaltz and Judy M. Martin; and a paper dated August 7, 1986 submitted by John Pirich.

 

/s/ Stephen C. Bransdorfer  Chairman

 

                                                            /s/ Michael I. Pyne                

Vice-Chairman

 

/s/ William Gnodtke        Member

 

 

APPELLANT MILEGALIZE’S EMERGENCY

APPLICATION FOR LEAVE TO APPEAL BEFORE

A DECISION OF THE COURT OF APPEALS

RESOLUTION OF APPEAL REQUESTED BY

SEPTEMBER 6, 2016, RELEVANT EXCERPTS (AUGUST 30, 2016)

 

 

STATE OF MICHIGAN

IN THE SUPREME COURT

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE A/K/A MILEGALIZE,

Appellant,

v.

RUTH JOHNSON Michigan Secretary of State,

CHRISTOPHER THOMAS Director of Bureau of Elections, and BOARD OF STATE CANVASSERS,

Appellees.

________________________

Court of Claims Case No. 16-131-MM

 

 

ORDER APPEALED FROM AND RELIEF SOUGHT

The Court of Claims issued an order August 23, 2016, that was made public August 24 2016, holding that:

1)        That Appellees had no legal duty to canvass

Appellants 354,000 signatures on petitions;

2)        Consumers Power applied to Appellant, and to statutory initiatives generally, and that the rebuttable presumption was not unconstitutional under Art. 2, Sec. 9;

3)        That Appellant’s First Amendment claims were “repetitive”. (8/24/2016 Order).

The Opinion and Order did not address the statutory mandates of using the Qualified Voter File to canvass petitions, or to Appellant’s argument, supported by the factual record, that the 1986 Board of Canvassers alleged policy is feasibly impossible to actually comply with by anyone—not just Appellant. The terms “strict scrutiny” and “rational basis” do not appear anywhere in the Opinion and Order, nor does the recognition that petitioning is “core political speech”.

The Opinion and Order do not address that Appellant submitted indisputable proof referencing the Qualified Voter File of the registrations of 137,000-plus signors and potential voters to rebut any presumption of staleness after 180-days, proving and complying with the statutory standard of MCL 168.472a.

Appellant and all Michigan voters stand to suffer gross deprivations of their fundamental rights and liberties if the election ballot fails to contain Appellant’s properly submitted question for the voters. This Court must take caution to not give cause for even more people to believe the system is “rigged”.

Appellant filed an original action in the Supreme Court under MCL 168.479 on August 26, 2016, docket number. An emergency application for leave to appeal in the Court of Appeals was filed on August 30, 2016. Both of these actions are timely, and this application for leave to appeal is timely filed before a decision by the Court of Appeals under MCR 7.302(C)(1)(b). For the reasons stated below and in its motion for immediate consideration, Appellant respectfully requests that this Court peremptorily reverse the Court of Claims order under MCR 7.211(C)(4), or, as a lesser alternative, grant leave and expedite review to reach a decision in order to timely resolve this matter before September 6, 2016.

A delay in final adjudication by this Court is likely to cause substantial harm. The looming deadlines in the election process mean that a decision by the Court of Appeals in the ordinary course will come too late to permit the ballot question to appear on the November 2016 ballot. Therefore Appellant is asking for a “bypass” to this court. MCR 7.305 (B)(4)(a).

REASONS FOR GRANTING

THE EMERGENCY APPLICATION

Unfortunately, given the paramount public interest and stakes for the integrity of our electoral system and constitutional order, the Court of Claims took over two months to rule or even communicate with the parties regarding the lower action, despite several emergency motions and payment of fees for immediate consideration. The parties never had a hearing—a shocking deprival of due process given the nature of the case—and no scheduling order was ever issued. The dilatory actions of the lower court have prejudiced this matter being timely and fairly resolved, through no fault of Appellant.

[ . . . ]

 . . . standard defeats any judicial principle of presuming government action to be lawful or rational. Something against the law is by definition not lawful, and there is no rational basis for the 1986 policy being supreme and rendering state law nugatory.

Third, the Court of Claims totally ignores the elephant in the room—that the 1986 BOC alleged policy is impossible to comply with by any means, meaning that the BOC has made the “rebuttable presumption” now “irrebuttable”. The record is clear Appellant and no one ever will be able to comply with the policy. It is clear injustice and a violation of Appellant’s civil rights for the BOC to be on notice that Appellant submitted proofs to rebut 137,000plus signatures with sufficient QVF references. The 1986 policy usurps the People’s supreme rights of Art. 2, Sec. 9, and by the BOC insisting that the 1986 policy is the only way to rebut the staleness of signatures, denies any reasonable option as an alternative. This is a clear violation of due process under the 14th Amendment and Michigan’s constitution. The 1986 BOC policy is a fraud designed to frustrate ballot access by the People. It is dishonest government at its worst and must be harshly repudiated.

Fourth, the Court totally ignores Appellant’s First and Fourteenth Amendment arguments, simply referring to them as “repetitive”. An honest discussion or review of the questions herein cannot avoid the necessary First Amendment analysis of burdening petitioning and free speech rights. Probably because the 1986 BOC policy could not be justified under any strict scrutiny or even rational basis analysis, the unworkable nature of the 1986 policy was ignored by the lower court. This Supreme Court must ensure that our constitutional rights are not so trivially trampled upon.

[ . . . ]

Even more damning, the Bureau of Elections told clerks they did not have to assist campaigns in rebutting. So at the same time Appellees are demanding Appellant can only rebut using the 1986 policy, Appellees are at the same time frustrating Appellants ability to do so by telling clerks they do not have to comply. This is undisputed from the clerks emails with the Bureau in the lower court record.

From the lower court record it is also clear, no clerks have ever rebutted signatures, nor have any clerks offices received training to do so. Part of the reason is likely that the 1986 policy runs afoul of Headlee, as it is a post-1978 unfunded mandate to local governments that was not funded at the time of enacting Headlee, and no funds were appropriated to cover municipal clerks office to perform the service. Unfunded mandates are prohibited by Headlee and another reason the 1986 policy is not lawful.

Lastly, asking the board of canvassers, the same body that is not neutral and that refused to adopt a workable policy to rebut signatures, to then by the same body that determines the sufficiency of signatures, is troubling from a due process perspective. The board members were clearly not neutral, with one of the four board members leaving during two meetings while the policy was being discussed, one time even running out of the Capitol and being chased by reporters. That same board and person then make the decision not to count Appellants signatures due to failing to comply with the board’s policy that the board knows to be unworkable.

Courts across the country have recognized that a law or policy cannot be impossible to comply with. In July 2016, the US Supreme Court struck down Texas’s “admitting privilege” law because it placed an undue burden on Texas women seeking abortions. The rationale argued was that because hospitals did not have to grant privileges, abortion clinics would have to close. Whole Woman’s Health v. Hellerstedt. “. . . . a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.” Similar reasoning applies to this case. The 1986 BOC policy places “substantial obstacles” on Appellants petitioning rights, constituting an “undue burden” that “violates the Constitution.”

An undue burden pursuant to the constitutional law is a violation if all three of these conditions are met. First, there is the question of whether a right exists. Second, it must be determined whether the right has been infringed. Third, can the State justify the infringement. In this case, 1) The right of initiative in regards to legislation exists, Ferency v. Sec. of State, 409 Mich. 569 (1980) and other cases; 2) The right has been infringed, similar to infringement analysis in Whole Women’s Health v. Hellerstedt, 569 U.S.___ (2016); and 3) Appellees cannot justify the infringement now that the QVF is available and required to be used to canvass petitions.

In 1988 suit was filed to invalidate several initiatives that had petitioned for more than 180 days without rebutting signatures. The suit was rejected, and the court opined on the nature of the rebuttable presumption, and how any policy imposed that is “impractical”, or “probably impossible”, is therefore unjust.

“The first factor to be considered concerns the purpose of the rule. The purpose of the presumption that signatures are stale and void after 180 days is to “fulfill the constitutional directive of art. 12, § 2 that only the registered electors of this state may propose a constitutional amendment [or initiate legislation].” Consumers Power, supra, pp 7-8. The presumption is expressly intended to be rebuttable, but, in this case, the petitions for Proposal B were destroyed long ago. We believe that retrospective application of Consumers Power, which would require proof that the signatures for Proposal B were valid, would be impractical, probably impossible and therefore unjust.” Line v. Michigan, 173 Mich. App. 720; 434 N.W.2d 224 (1988).

Just as in Line, the 1986 policy is impractical, impossible, and unjust, and it must not be applied to Appellant.

Even if the rebuttable presumption itself is constitutional, the process has become a mess because of a lack of any reasonable standard, and practically begs for judicial intervention to make fine judgments of fact and law. As Ferency stated, “The people, in reserving to themselves the power to amend their Constitution through a self-executing process, cannot have intended to require state election officials to make complex judgments which would require judicial imprimatur in order to establish that the election officials had properly performed their duties under Const. 1963, art. 12, sec. 2.” Yet, with the convoluted 1986 BOC policy, that is exactly what has happened in this instance.

Appellant’s petitions are in effect a form of property in general, chattel paper—the original paper is valuable property whose value comes from paying for signatures and without which is worth much less to Appellant. Appellant was deprived of value and foreseeable investment backed expectations rendered worthless by the imposition of the 1986 BOC policy which “regulates”, “takes”, and degrades the higher value of Appellant’s chattel paper. Appellant can receive the petitions back after this process, and the actual petitions will be worth much more as chattel paper if Appellant’s question is placed on the ballot (for example Appellant could auction petitions sheets with the signatures of famous Michiganders like Laath Al-Saadi, Rep. John Conyers, Kid Rock or others whom may have signed. These petitions will be more valuable if Appellant’s initiative is on the ballot).

While dealing with government benefits, the due process considerations are broadly applicable as Mathews v. Eldridge, 424 U.S. 319, 333 (1976) outlined, “the interest of an individual in continued receipt of statutorily created benefits are a “property” interest protected by the Fifth Amendment. Id. When considering due process, the court must consider 1) the nature of the private interest at stake and its importance to the individual concerned, 2) the risk that the procedures used by the government will erroneously deprive the individual of the interest at issue, 3) consider how efficacious additional protections would be in reducing such error, and 4) evaluate the governments interest in a more streamlined procedure, including the interest in reducing administrative costs. Id. at 335.

Appellant is entitled to the benefit of being able to rebut its signatures for staleness. Appellant made substantial investment backed expectations based on the right to petition for more than 180 days that was the clear law of the land since 1964. “A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit . . . .” Perry v. Sindermann, 408 U.S. 593, 601 (1972); see generally Shapiro v. Thompson, 394 U.S. 618 (1969). Here, Appellant has both liberty and property interests that are being infringed without adequate due process of law, and without compensation for what amounts to a regulatory takings by the enforcement of the 1986 BOC policy.

IV. BOTH THE REBUTTABLE PRESUMPTION AND THE 1986 BOC TO REBUT STALENESS VIOLATE DUE PROCESS AND THE FIRST AND FOURTEENTH AMENDMENTS PROTECTIONS AGAINST UNDUE BURDENS PLACED ON CORE POLITICAL SPEECH

The Court totally ignores Appellant’s First and Fourteenth Amendment arguments, simply referring to them as “repetitive” (Order p. 11). An honest discussion or review of the questions herein cannot avoid the necessary First Amendment analysis of burdening petitioning and free speech rights. Probably because the 1986 BOC policy could not be justified under any strict scrutiny or even rational basis analysis, the unworkable nature of the 1986 policy was ignored by the lower court. This analysis is not the same as under Art. 2, Sec. 9 by any means, yet it is mistakenly applied, and even Consumers is cited, yet Consumers dealt with Art. 12, Sec. 2 challenges, not strict scrutiny first and Fourteenth amendment challenges.

The court is mistaken to characterize Appellants argument simply that the board’s procedure is bad policy and that the QVF would be preferred by Appellant. That misses the point. It is also a mischaracterization that Appellant was trying to shift the burden of rebutting the presumption to the Board. Appellant already overcame the stale presumption on 137,000-plus of its signatures by providing credible evidence, at which point, the burden of not counting each and every one of those signatures was the board’s burden to either say they were valid or invalid for some other lawful reason determined by a real canvass. The lower court says that Appellant is contradicting the rule of law that a party seeking to rebut the presumption bears the burden. Appellant met the burden. It is the Appellees who are contradicting the law by refusing to canvass or qualify the petition after Appellant rebutted and seeking to make the rebuttable presumption actually irrebuttable, and changing the rule of law that once a party, in this instance Appellant, overcomes the burden, the burden shifts to the other party, in this instance Appellees.

The lower court errs again (Order p. 12) by stating that Appellant failed to establish any statute or legal authority that the lower court has to dictate to the BOC a particular methodology that it must employ in fulfilling its canvassing duties. This is about as odd as the lower court opinion gets, because the court totally ignores the statutory framework cited that requires Appellees to use the QVF. Once again, this is not Appellants “preference”. Of course the lower court can order a state agency to comply with a statutory mandate to fulfill canvassing duties.

That is exactly why we have the canvassing duties rather clearly defined in the law. Appellants counsel must comment that they have never heard a court state that it does not have authority to enforce the law . . . . This part of the opinion almost reads like the “twilight zone”. If courts in Michigan are not aware they can rule on the enforcement of laws then something has gone strangely awry in our jurisprudence.

It is quite baffling that the lower court did not acknowledge the essential facts and law: petitioning is core political speech. Once a state grants the initiative right, it cannot place undue burdens on the right. The People of Michigan have granted themselves the initiative right under Art. 2, Sec. 9. They did not grant the Legislature or the Board of Canvassers any authority to abrogate that right or to place such severe burdens on its exercise that that right becomes merely illusory.

A state need not grant initiatory petition rights to its citizens. But once a state does, grant initiatory petitioning rights, those rights must comport with federal law including surviving a strict scrutiny analysis of burdens placed on the process. The right to vote is a fundamental right, see, e.g., Kramer v. Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). While petitioning is not the same as the right to vote, petitioning is core political speech, which implicates First Amendment strict scrutiny review when it comes to the 1986 BOC policy, and the First Amendment, like all other fundamental and many other rights, applies to the states through the 14th Amendment. Doe v. Reed, the Court held that signing an official petition is expressive speech (albeit with legal effect) because it involves the articulation of “a political view.” 130 S.Ct. 2811, 2817 (2010). Michigan’s constitution provides at least as much protection for these rights as the federal constitution, and in the case of petitioning for statutory initiatives, provides even greater rights under Art. 2, Sec. 9 of the 1963 Constitution. Repub-

lican Party of Minn. v. White, 536 U.S. 765, 788 (2002), which stated that a State “having ‘cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles.’”.

In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Court held in determining whether an election law violates the First Amendment a court should weigh the burden of the restriction against the State’s interests:

Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Id. at 358, 117 S.Ct. 1364 (internal quotations and citations omitted); see also Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir.2008) (“Although a state need not present ‘elaborate, empirical verification’ of the weight of its purported justification when the burden is moderate, it must come forward with compelling evidence when the burden is higher”) (citations omitted). Bogaert v. Land II, 675 F.Supp.2d at 749-750 is another oft quoted case. Accordingly, even under flexible analysis, the scrutiny here should be strict: the proposed regulation must be narrowly tailored to serve a compelling state interest. Furthermore, the Bogaert v. Land II court found justification for not even bothering with the flexible approach, and rejected the distinction in petition types.

Defendant’s attempt to distinguish recallpetition circulation from other forms of petition circulation is not persuasive. Contrary to Defendant’s suggestion, the proposition that the registration and residency requirements pose only a moderate burden on recall-petition circulators is not simply a matter of common sense. In fact, the existing case law and common sense tend to refute Defendant’s argument for distinguishing recall petitions from initiative or candidate petitions. . . . [R]ecall-petition circulators resemble both initiative-petition circulators and candidate-petition circulators because they similarly seek ballot access.

Bogaert v. Land II, 675 F.Supp.2d at 750-751.

This Court’s previous determination that § 957 posed a severe burden on recall-

petition circulators was based on a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny. (Dkt. No. 37, Op. 34-36.) See Buckley

v. Am. Const. Law Found., Inc., 525 U.S. 182, 194, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Nader v. Brewer, 531 F.3d 1028,

1036 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242 (10th Cir. 2002); Lerman v. Bd. of Elections, 232 F.3d

135, 149 (2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir.2000). Subsequent to this Court’s opinion on the preliminary injunction motion, the Sixth Circuit issued its opinion in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), in which it joined the other federal circuits in extending the principles established in Buckley regarding initiative-petition circulators to candidatepetition circulators. Id. at 475-76 (applying strict scrutiny and holding that Ohio’s registration and residency requirements for candidate-petition circulators violated the First Amendment). See also Yes on Term

Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (applying strict scrutiny to analyze Oklahoma’s ban on non-resident initiative-petition circulators).

None of Defendant’s arguments convince this Court that its previous determination that the registration and residency requirements of § 957 impose a substantial burden on Plaintiff’s First Amendment rights and are not narrowly tailored to Michigan’s compelling interest in the integrity of recall petitions and the combat of election fraud was erroneous. The Court stands by its previous analysis. Rather than reiterating that analysis herein, the Court reaffirms and adopts that analysis by reference and declares that the requirements in Mich. Comp. Laws § 168.957 that recall-petition circulators be registered to vote and be residents of the legislative district of the official to be recalled are unconstitutional as a violation of the First Amendment of United States Constitution, applicable to the State of Michigan through the Fourteenth Amendment. (Dkt. No. 37, Op. 33-39.)

Bogaert v. Land II, 675 F.Supp.2d at 752. In. Buckley, the Supreme Court struck down a Colorado statute which required, inter alia, that initiative-petition circulators be registered voters. Id. The Court extended its holding in Meyer v. Grant, 486 U.S. at 414, in which it rejected Colorado’s ban on paying ballot-initiative petition circulators. Justice Ginsburg, writing for the Buckley majority, discussed the fundamental constitutional rights at stake in election petition circulation:

Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” First Amendment protection for such interaction, we agreed, is “at its zenith.” We have also recognized, however, that “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Buckley, 525 U.S. at 183 (internal citations omitted.).

In this case, as in Meyer, the requirement “imposes a burden on political expression that the State has failed to justify.” Id. at 428. Buckley, 525 U.S. at 194-195 (some internal citations omitted).

Keeping Buckley in mind, we examine the character and magnitude of the burden imposed by requiring both the rebuttable presumption and the 1986 BOC policy on First Amendment rights and the extent to which the law serves Michigan’s interests. Burdick v. Takushi, 504 U.S. 428, 433-434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Laws which are severely burdensome to constitutional freedoms must be narrowly tailored to serve compelling state interests, while less burdensome statutes receive less exacting scrutiny. California Democratic Party v. Jones, 120 S.Ct. at 2412.

The imposition of a rebuttable presumption requirement and the impossible to comply with 1986 BOC policy burdens the petitioners’ and others’ core freedoms of political expression and association. See Buckley, 525 U.S. at 183; Krislov, 226 F.3d at 858, 860-861. That is, petitioners may not associate for purposes of political expression by organizing nominating petition signature drives with whomever they wish. See Meyer, 486 U.S. at 424 (“The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”). It also limits the ability of petitioner’s to conduct a citizens campaign to educate Michigan voters over an extended period of time. In this case, Appellant MILegalize found it more effective and important to run an 11-month campaign to educate Michigan voters and encourage discussion and inquiry into the proposal than a campaign limited to 180 days. Regardless of how long Appellant petitioned for, the initiative would be heard at the same election and the issue and language would remain the same.

Michigan law is analogous to the federal cases, and any rebuttable presumption requirement must also be strictly construed. “[T]he right to recall public officials is an extremely important one which must be carefully guarded by the courts [ . . . ] statutes governing recall should be construed in favor of the right’s exercise and [ . . . ] limitations on the right should be strictly construed[.]” Schmidt v. Genesee Co. Clerk, 127 Mich. App. 694, 701-702; 339 N.W.2d 526 (1983). Further, “it is always in the public interest to prevent a violation of a party’s constitutional rights.” G&V Lounge Inc v. Michigan Liquor Control

Comm’n., 23 F.3d 1071, 1079 (6th Cir. 1979) citing

Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 383 (1979). The state has failed to justify any reason for enforcement of both the rebuttable presumption and the 1986 BOC policy. Appellant did not go through all the effort of collecting legitimate signatures just for fun—it did it to initiate legislation. As Justice John Paul Stevens stressed in his dissent in Minnesota

Board for Community Colleges v. Knight, (1984), “The First Amendment was intended to secure something more than an exercise in futility.”

“Statutes must be struck down if they reduce the number of qualifying initiatives and the exchange of ideas.” Meyer, 486 U.S. at 421. Both MCL 168.472a and the BOC’s 1986 rebuttable presumption policy that is impossible to comply with must be struck down as unconstitutional. The 1986 BOC policy is a state procedure that is treating qualified electors differently and abridging their right to engage in political speech. See Idaho Coal United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 n. 7 (9th Cir. 2003) (explaining how the state “subjects itself to the requirements of the Equal Protection Clause” when it provides a right to ballot initiatives or a particular form of voting); cf. Moore v. Ogilvie, 394 U.S. 814, 818 (1969) (“All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote.”).

The lower court record was clear regarding the burdens of the 1986 policy. The original 1986 comments submitted at the time of the 1986 policy provide a historical perspective. The arguments discuss state and void, and how statutory initiatives differ from constitutional amendments as the Legislature has no authority to meddle with the initiative process. A thorough record of experts, attorneys, BOE staff, and BOC members can be found in the various transcripts attached in relevant parts to Appellants original complaint, and the testimony supports Appellants claims.

Exhibit L–Board of Canvassers Meeting  December 3, 2015 Transcript

Exhibit M–Board of Canvassers Meeting  December 14, Transcript

Exhibit N–Board of Canvassers Meeting January 14, 2016 Transcript

Exhibit O–Board of Canvassers Meeting  March 7, 2016 Transcript

Exhibit P–Board of Canvassers Meeting 

March 24, 2016 Transcript

Exhibit Q–Board of Canvassers Meeting 

May 12, 2016 Transcript

 [ . . . ]

 . . . initiative—it is more popular than either of the two leading presidential candidates Donald Trump or Hillary Clinton.

Creating insurmountable burdens or processes to initiate such legislation thwarts the popular will and chills First Amendment activity because it creates such daunting burdens that many people will be discouraged from exercising their rights under assumption that exercise of the right is futile. Enforcing the impossible to comply with 1986 policy to the detriment of using other sufficient means to rebut the presumption is not reasonable enough to justify the restriction. See Timmons at 358.

V. BOTH THE LANGUAGE AND PROCESS OF MCL 168.472a AND THE 1986 BOC POLICY ARE VAGUE, AMBIGUOUS AND THE TERMS STALE AND VOID, AND

EVEN REBUTTABLE PRESUMPTION, ARE ALL UNDEFINED. TO THE EXTENT WE KNOW THAT THE LONGSTANDING CONSENSUS DEFINITION OF “STALE” SIMPLY MEANS THE SIGNATURE WAS NOT A DUPLICATE AND THAT THERE REMAINED A WAY TO PROVE THE SIGNOR WAS REGISTERED TO VOTE (CLERKS USED TO DELETE VOTER RECORDS OVER TIME PERIODS SHORTER THAN THE TIME TO PETITION BETWEEN GUBERNATORIAL PERIODS), APPELLANT USING THE QUALIFIED VOTER FILE

REFERENCES TO PROVE REGISTRATION OF 137,000PLUS SIGNORS SUFFICIENTLY OVERCOMES ANY PLAUSIBLE DEFINITION OF THESE LOOSE TERMS

The lower court totally ignores the vague and ambiguous and undefined nature of the terms “stale and void”, and even “rebuttable presumption”. The statute and policy are void for vagueness—and even if they are not, Appellant submitted adequate proofs to overcome any possible reasonable interpretation of the terms.

While the terms “stale and void” are undefined, we have a good record of what most people familiar with the subject and context understand it to mean. “Stale and void” describes signatures that by reason of legal defect cannot be counted to meet the constitutional qualification requirement (these would include void due to duplicates, forgeries, incomplete information, petition torn or missing circulator signature, etc.). “Stale” is not used to create a new or independent disqualification, but rather to . . . 

[ . . . ]

 . . . normal, orderly, timely manner, and to override any statutory or constitutional time constraints that would prejudice placing this matter before the voters at the next regular election;

  • Award Appellant costs and Appellant’s counsel reasonable attorney fees; and
  • Grant such other relief as the court finds just or equitable under the circumstances.

 

Respectfully Submitted:

 

HANK LAW, PLLC

 

By: /s/ Jeffrey A. Hank (P71152)  

Attorney for Appellant

P.O. Box 1358

East Lansing, Michigan 48826

Telephone: (855) 426-5529

Facsimile: (888) 490-7750

 

Thomas Lavigne (P58395)

Matthew R. Abel (P38876)

Cannabis Counsel, PLC

Attorneys for Appellant

2930 E. Jefferson

Detroit, MI 48207

 

David Cahill (P24046)

Attorney for Appellant

1418 Broadway

Ann Arbor, MI 48105

(734) 769-0753

 

Dated: 8/30/2016

 

 

APPELLANT’S EMERGENCY APPLICATION

RELEVANT EXCERPTS

(AUGUST 30, 2016)

 

 

STATE OF MICHIGAN 

IN THE COURT OF APPEALS

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE A/K/A MILEGALIZE,

Appellant,

v.

RUTH JOHNSON Michigan Secretary of State,

CHRISTOPHER THOMAS Director of Bureau of Elections, and BOARD OF STATE CANVASSERS,

Appellees.

________________________

Court of Claims Case No. 16-131-MM

 

 

[ . . . ]

TABLE OF AUTHORITIES

US Constitutional Citations

US Const First Amendment

US Const Fifth Amendment

US Const Fourteenth Amendment

 

[ . . . ]

 

ORDER APPEALED FROM AND RELIEF SOUGHT

The Court of Claims issued an order August 23, 2016, that was made public August 24 2016, holding that:

1)        That Appellees had no legal duty to canvass Appellants 354,000 signatures on petitions;

2)        Consumers Power applied to Appellant, and to statutory initiatives generally, and that the rebuttable presumption was not unconstitutional under Art. 2, Sec. 9;

3)        That Appellant’s First Amendment claims were “repetitive”. (8/24/2016 Order).

The Opinion and Order did not address the statutory mandates of using the Qualified Voter File to canvass petitions, or to Appellant’s argument, supported by the factual record, that the 1986 Board of Canvassers alleged policy is feasibly impossible to actually comply with by anyone—not just Appellant. The terms “strict scrutiny” and “rational basis” do not appear anywhere in the Opinion and Order, nor does the recognition that petitioning is “core political speech”.

The Opinion and Order do not address that Appellant submitted indisputable proof referencing the Qualified Voter File of the registrations of 137,000-plus signors and potential voters to rebut any presumption of staleness after 180-days, proving and complying with the statutory standard of MCL 168.472a.

Appellant and all Michigan voters stand to suffer gross deprivations of their fundamental rights and liberties if the election ballot fails to contain Appellant’s properly submitted question for the voters.

This Court must take caution to not give cause for even more people to believe the system is “rigged”.

[ . . . ]

 . . . standard defeats any judicial principle of presuming government action to be lawful or rational. Something against the law is by definition not lawful, and there is no rational basis for the 1986 policy being supreme and rendering state law nugatory.

Third, the Court of Claims totally ignores the elephant in the room—that the 1986 BOC alleged policy is impossible to comply with by any means, meaning that the BOC has made the “rebuttable presumption” now “irrebuttable”. The record is clear Appellant and no one ever will be able to comply with the policy. It is clear injustice and a violation of Appellant’s civil rights for the BOC to be on notice that Appellant submitted proofs to rebut 137,000-plus signatures with sufficient QVF references. The 1986 policy usurps the People’s supreme rights of Art. 2, Sec. 9, and by the BOC insisting that the 1986 policy is the only way to rebut the staleness of signatures, denies any reasonable option as an alternative. This is a clear violation of due process under the 14th Amendment and Michigan’s constitution. The 1986 BOC policy is a fraud designed to frustrate ballot access by the People. It is dishonest government at its worst and must be harshly repudiated.

Fourth, the Court totally ignores Appellant’s First and Fourteenth Amendment arguments, simply referring to them as “repetitive”. An honest discussion or review of the questions herein cannot avoid the necessary First Amendment analysis of burdening petitioning and free speech rights. Probably because the 1986 BOC policy could not be justified under any strict scrutiny or even rational basis analysis, the unworkable nature of the 1986 policy was ignored by the lower court. This Supreme Court must ensure that our constitutional rights are not so trivially trampled upon.

[ . . . ]

Even more damning, the Bureau of Elections told clerks they did not have to assist campaigns in rebutting. So at the same time Appellees are demanding Appellant can only rebut using the 1986 policy, Appellees are at the same time frustrating Appellants ability to do so by telling clerks they do not have to comply. This is undisputed from the clerks emails with the Bureau in the lower court record.

From the lower court record it is also clear, no clerks have ever rebutted signatures, nor have any clerks offices received training to do so. Part of the reason is likely that the 1986 policy runs afoul of Headlee, as it is a post-1978 unfunded mandate to local governments that was not funded at the time of enacting Headlee, and no funds were appropriated to cover municipal clerks office to perform the service. Unfunded mandates are prohibited by Headlee and another reason the 1986 policy is not lawful.

Lastly, asking the board of canvassers, the same body that is not neutral and that refused to adopt a workable policy to rebut signatures, to then by the same body that determines the sufficiency of signatures, is troubling from a due process perspective. The board members were clearly not neutral, with one of the four board members leaving during two meetings while the policy was being discussed, one time even running out of the Capitol and being chased by reporters. That same board and person then make the decision not to count Appellants signatures due to failing to comply with the board’s policy that the board knows to be unworkable.

Courts across the country have recognized that a law or policy cannot be impossible to comply with. In July 2016, the US Supreme Court struck down Texas’s “admitting privilege” law because it placed an undue burden on Texas women seeking abortions. The rationale argued was that because hospitals did not have to grant privileges, abortion clinics would have to close. Whole Woman’s Health v. Hellerstedt. The law was struck down because it placed “. . . . a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.” Similar reasoning applies to this case. The 1986 BOC policy places “substantial obstacles” on Appellants petitioning rights, constituting an “undue burden” that “violates the Constitution.”

An undue burden pursuant to the constitutional law is a violation if all three of these conditions are met. First, there is the question of whether a right exists. Second, it must be determined whether the right has been infringed. Third, can the State justify the infringement. In this case, 1) The right of initiative in regards to legislation exists, Ferency v. Sec. of State, 409 Mich. 569 (1980) and other cases; 2) The right has been infringed, similar to infringement analysis in Whole Women’s Health v. Hellerstedt, 569 U.S.___ (2016); and 3) Appellees cannot justify the infringement now that the QVF is available and required to be used to canvass petitions.

In 1988 suit was filed to invalidate several initiatives that had petitioned for more than 180 days without rebutting signatures. The suit was rejected, and the court opined on the nature of the rebuttable presumption, and how any policy imposed that is “impractical”, or “probably impossible”, is therefore unjust.

“The first factor to be considered concerns the purpose of the rule. The purpose of the presumption that signatures are stale and void after 180 days is to “fulfill the constitutional directive of art. 12, § 2 that only the registered electors of this state may propose a constitutional amendment [or initiate legislation].” Consumers Power, supra, pp 7-8. The presumption is expressly intended to be rebuttable, but, in this case, the petitions for Proposal B were destroyed long ago. We believe that retrospective application of Consumers Power, which would require proof that the signatures for Proposal B were valid, would be impractical, probably impossible and therefore unjust.” Line v.

Michigan, 173 Mich. App. 720; 434 N.W.2d 224

(1988).

Just as in Line, the 1986 policy is impractical, impossible, and unjust, and it must not be applied to Appellant.

Even if the rebuttable presumption itself is constitutional, the process has become a mess because of a lack of any reasonable standard, and practically begs for judicial intervention to make fine judgments of fact and law. As Ferency stated, “The people, in reserving to themselves the power to amend their Constitution through a self-executing process, cannot have intended to require state election officials to make complex judgments which would require judicial imprimatur in order to establish that the election officials had properly performed their duties under Const. 1963, art. 12, sec. 2.” Yet, with the convoluted 1986 BOC policy, that is exactly what has happened in this instance.

Appellant’s petitions are in effect a form of property in general, chattel paper—the original paper is valuable property whose value comes from paying for signatures and without which is worth much less to Appellant. Appellant was deprived of value and foreseeable investment backed expectations rendered worthless by the imposition of the 1986 BOC policy which “regulates”, “takes”, and degrades the higher value of Appellant’s chattel paper. Appellant can receive the petitions back after this process, and the actual petitions will be worth much more as chattel paper if Appellant’s question is placed on the ballot (for example Appellant could auction petitions sheets with the signatures of famous Michiganders like Laath AlSaadi, Rep. John Conyers, Kid Rock or others whom may have signed. These petitions will be more valuable if Appellant’s initiative is on the ballot).

While dealing with government benefits, the due process considerations are broadly applicable as Mathews v. Eldridge, 424 U.S. 319, 333 (1976) outlined, “the interest . . . 

[ . . . ]

. . . Appellants “preference”. Of course the lower court can order a state agency to comply with a statutory mandate to fulfill canvassing duties. That is exactly why we have the canvassing duties rather clearly defined in the law. Appellants counsel must comment that they have never heard a court state that it does not have authority to enforce the law . . . . This part of the opinion almost reads like the “twilight zone”. If courts in Michigan are not aware they can rule on the enforcement of laws then something has gone strangely awry in our jurisprudence.

It is quite baffling that the lower court did not acknowledge the essential facts and law: petitioning is core political speech. Once a state grants the initiative right, it cannot place undue burdens on the right. The People of Michigan have granted themselves the initiative right under Art. 2, Sec. 9. They did not grant the Legislature or the Board of Canvassers any authority to abrogate that right or to place such severe burdens on its exercise that that right becomes merely illusory.

A state need not grant initiatory petition rights to its citizens. But once a state does, grant initiatory petitioning rights, those rights must comport with federal law including surviving a strict scrutiny analysis of burdens placed on the process. The right to vote is a fundamental right, see, e.g., Kramer v. Union Free School Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). While petitioning is not the same as the right to vote, petitioning is core political speech, which implicates First Amendment strict scrutiny review when it comes to the 1986 BOC policy, and the First Amendment, like all other fundamental and many other rights, applies to the states through the 14th Amendment. Doe v. Reed, the Court held that signing an official petition is expressive speech (albeit with legal effect) because it involves the articulation of “a political view.” 130 S.Ct. 2811, 2817 (2010). Michigan’s constitution provides at least as much protection for these rights as the federal constitution, and in the case of petitioning for statutory initiatives, provides even greater rights under Art. 2, Sec. 9 of the 1963 Constitution. Repub-

lican Party of Minn. v. White, 536 U.S. 765, 788 (2002), which stated that a State “having ‘cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles.’”.

In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Court held in determining whether an election law violates the First Amendment a court should weigh the burden of the restriction against the State’s interests:

Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Id. at 358, 117 S.Ct. 1364 (internal quotations and citations omitted); see also Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir.2008) (“Although a state need not present ‘elaborate, empirical verification’ of the weight of its purported justification when the burden is moderate, it must come forward with compelling evidence when the burden is higher”) (citations omitted). Bogaert v. Land II, 675 F.Supp.2d at 749-750 is another oft quoted case. Accordingly, even under flexible analysis, the scrutiny here should be strict: the proposed regulation must be narrowly tailored to serve a compelling state interest. Furthermore, the Bogaert v. Land II court found justification for not even bothering with the flexible approach, and rejected the distinction in petition types.

Defendant’s attempt to distinguish recallpetition circulation from other forms of petition circulation is not persuasive. Contrary to Defendant’s suggestion, the proposition that the registration and residency requirements pose only a moderate burden on recallpetition circulators is not simply a matter of common sense. In fact, the existing case law and common sense tend to refute Defendant’s argument for distinguishing recall petitions from initiative or candidate petitions. . . . [R]ecall-petition circulators resemble both initiative-petition circulators and candidatepetition circulators because they similarly seek ballot access.

Bogaert v. Land II, 675 F.Supp.2d at 750-751.

This Court’s previous determination that § 957 posed a severe burden on recall-petition circulators was based on a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny. (Dkt. No. 37, Op. 34-36.) See Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 194, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Nader v. Brewer, 531 F.3d 1028,

1036 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242 (10th Cir. 2002); Lerman v. Bd. of Elections, 232 F.3d 135, 149 (2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir. 2000). Subsequent to this Court’s opinion on the preliminary injunction motion, the Sixth Circuit issued its opinion in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), in which it joined the other federal circuits in extending the principles established in Buckley regarding initiative-petition circulators to candidate-petition circulators. Id. at 475-76 (applying strict scrutiny and holding that Ohio’s registration and residency requirements for candidate-petition circulators violated the First Amendment). See also Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (applying strict scrutiny to analyze Oklahoma’s ban on nonresident initiative-petition circulators).

None of Defendant’s arguments convince this Court that its previous determination that the registration and residency requirements of § 957 impose a substantial burden on Plaintiff’s First Amendment rights and are not narrowly tailored to Michigan’s compelling interest in the integrity of recall petitions and the combat of election fraud was erroneous. The Court stands by its previous analysis. Rather than reiterating that analysis herein, the Court reaffirms and adopts that analysis by reference and declares that the requirements in Mich. Comp. Laws § 168.957 that recall-petition circulators be registered to vote and be residents of the legislative district of the official to be recalled are unconstitutional as a violation of the First Amendment of United States Constitution, applicable to the State of Michigan through the Fourteenth Amendment. (Dkt. No. 37, Op. 33-39.)

Bogaert v. Land II, 675 F.Supp.2d at 752. In. Buckley, the Supreme Court struck down a Colorado statute which required, inter alia, that initiative-petition circulators be registered voters. Id. The Court extended its holding in Meyer v. Grant; 486 U.S. at 414, in which it rejected Colorado’s ban on paying ballot-initiative petition circulators. Justice Ginsburg, writing for the Buckley majority, discussed the fundamental constitutional rights at stake in election petition circulation:

Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” First Amendment protection for such interaction, we agreed, is “at its zenith.” We have also recognized, however, that “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Buckley, 525 U.S. at 183 (internal citations omitted.).

In this case, as in Meyer, the requirement “imposes a burden on political expression that the State has failed to justify.” Id. at 428. Buckley, 525 U.S. at 194-195 (some internal citations omitted).

Keeping Buckley in mind, we examine the character and magnitude of the burden imposed by requiring both the rebuttable presumption and the 1986 BOC policy on First Amendment rights and the extent to which the law serves Michigan’s interests. Burdick v. Takushi, 504 U.S. 428, 433-434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Laws which are severely burdensome to constitutional freedoms must be narrowly tailored to serve compelling state interests, while less burdensome statutes receive less exacting scrutiny. California Democratic Party v. Jones, 120 S.Ct. at 2412.

The imposition of a rebuttable presumption requirement and the impossible to comply with 1986 BOC policy burdens the petitioners’ and others’ core freedoms of political expression and association. See Buckley, 525 U.S. at 183; Krislov, 226 F.3d at 858, 860-861. That is, petitioners may not associate for purposes of political expression by organizing nominating petition signature drives with whomever they wish. See Meyer, 486 U.S. at 424 (“The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”). It also limits the ability of petitioner’s to conduct a citizens campaign to educate Michigan voters over an extended period of time. In this case, Appellant MILegalize found it more effective and important to run an 11month campaign to educate Michigan voters and encourage discussion and inquiry into the proposal than a campaign limited to 180 days. Regardless of how long Appellant petitioned for, the initiative would be heard at the same election and the issue and language would remain the same.

Michigan law is analogous to the federal cases, and any rebuttable presumption requirement must also be strictly construed. “[T]he right to recall public officials is an extremely important one which must be carefully guarded by the courts [ . . . ] statutes governing recall should be construed in favor of the right’s exercise and [ . . . ] limitations on the right should be strictly construed[.]” Schmidt v. Genesee Co. Clerk, 127 Mich. App. 694, 701-702; 339 N.W.2d 526 (1983). Further, “it is always in the public interest to prevent a violation of a party’s constitutional rights.” G&V Lounge Inc v. Michigan Liquor Control Comm’n., 23 F.3d 1071, 1079 (6th Cir. 1979) citing Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 383 (1979). The state has failed to justify any reason for enforcement of both the rebuttable presumption and the 1986 BOC policy. Appellant did not go through all the effort of collecting legitimate signatures just for fun—it did it to initiate legislation. As Justice John Paul Stevens stressed in his dissent in

Minnesota Board for Community Colleges v. Knight, (1984), “The First Amendment was intended to secure something more than an exercise in futility.”

“Statutes must be struck down if they reduce the number of qualifying initiatives and the exchange of ideas.” Meyer, 486 U.S. at 421. Both MCL 168.472a and the BOC’s 1986 rebuttable presumption policy that is impossible to comply with must be struck down as unconstitutional. The 1986 BOC policy is a state procedure that is treating qualified electors differently and abridging their right to engage in political speech. See Idaho Coal United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 n. 7 (9th Cir 2003) (explaining how the state “subjects itself to the requirements of the Equal Protection Clause” when it provides a right to ballot initiatives or a particular form of voting); cf. Moore v. Ogilvie, 394 U.S. 814, 818 (1969) (“All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote.”).

The lower court record was clear regarding the burdens of the 1986 policy. The original 1986 comments submitted at the time of the 1986 policy provide a historical perspective. The arguments discuss state and void, and how statutory initiatives differ from constitutional amendments as the Legislature has no authority to meddle with the initiative process. A thorough record of experts, attorneys, BOE staff, and BOC members can be found in the various transcripts attached in relevant parts to Appellants original complaint, and the testimony supports Appellants claims.

Exhibit L–Board of Canvassers Meeting  December 3, 2015 Transcript

Exhibit M–Board of Canvassers Meeting  December 14, Transcript

Exhibit N–Board of Canvassers Meeting January 14, 2016 Transcript

Exhibit O–Board of Canvassers Meeting  March 7, 2016 Transcript

Exhibit P–Board of Canvassers Meeting 

March 24, 2016 Transcript

Exhibit Q–Board of Canvassers Meeting 

May 12, 2016 Transcript

At the December 3, 2015 BOC meeting, BOE Director Christopher Thomas stated in regards to the superiority of using the QVF rather than the 1986 BOC policy, “So our data [BOE] does show the exact history of where and when people were registered. So there is new data that did not exist back then.” (Exhibit L, p. 40). The December 14, 2015 transcript is also attached. Exhibit M.

At the January 14, 2016 BOC meeting, BOE Director Thomas stated, “It was brought up by Mr. Hank[s] that the current state of voter registration has changed significantly with a qualified voter file and that it would be much more efficient to use that as a means to satisfy those two requirements. We have concurred in that since the qualified voter file, in fact, does contain that information and could be made available to the petitioners for the purposes of assisting them in rebutting the stale signatures.” (Exhibit N, p. 7). Thomas further stated that “. . . . the Governor’s term of office still applies. . . . .” in regards to the petition time period. (Exhibit N, p. 8).

At the same meeting, noted elections attorney Gary Gordon stated in regards to the lack of thoughtful consideration in crafting the 1986 BOC policy that, “The existing policy is not a policy that was adopted after—after a long consideration, and we are treating it like its some kind of Holy Grail that was—that was adopted after—after, you know, great thought and so on. This policy was adopted very precipitously by the Board . . . .” (Exhibit N, p. 10). At the same meeting, Gordon noted that there is no statutory definition of stale or void, and not much thought was given to the definitions of either term. (Exhibit N, p. 13). Mr. John, Pirich, another noted elections attorney, echoed Mr. Gordon’s statements in discussion with Thomas about the vague nature of MCL 168.472a, and what the Legislature may have meant by those terms and how even those with the most elections experience could not agree on the definitions of the terms. (Exhibit N pps. 14-26). Ellis Boal, an attorney also testified and noted how Pinch and Gordon in their written comments to the BOC affirmed that no one knows what the term stale means. (Exhibit N pps. 39, 41).

Mr. Thomas, a widely respected state official, went further in his comments, stating that in regards to the 1986 policy and constitutional and legislative prerogative, “. . . . that we really should not rely on the policy developed in 1986 until such time as the legislature gives us clarity.” (Exhibit N, p. 24). Thomas further stated, in regarding the difference of burdens placed on petitioners between using the QVF versus the 1986 policy to rebut signatures, that an updated policy “. . . . if adopted, would certainly make it much, much easier to rebut signatures . . . ”. (Exhibit N, p. 25).

Further testimony was provided by political and petitions expert Alan Fox, of Practical Political Consulting, whom provide Appellant with services to rebut signatures, and how also has experience in challenging initiative petitions. Fox stated in regards to the 1986 policy, “It bears no resemblance to how petitions are validated now.” (Exhibit N, p. 32), and that the initiative process, particularly canvassing or attempting to rebut signatures is “. . . . a monumental task; don’t underestimate it. It’s—it’s not impossible, but it would be expensive and it will be time consuming in any petition organization that tries to do it will very rapidly discover that no matter how you do it, it’s not an efficient process.” (Exhibit N, p. 34).

At the March 7, 2016 meeting of the BOC, Director Thomas commented to the effect that in order for the BOE to canvass the petitions and do a random sample for validity as is common practice, the BOE would have to know whether to include signatures more than 180 days old. (Exhibit O, p. 16). Gordon again testified on March 7, noting the lack of definition of stale and void and how different interpretations exist. (Exhibit O, p. 25). At the same meeting Director Thomas stated that the logistics of the 1986 signor affidavits or clerk certifications were “. . . . a huge burden; not question about it.” He also further stated an updated policy could “. . . . significantly reduce[d] the burden on the filer.” (Exhibit O, p. 35).

At the March 24, 2016 BOC meeting, Jeffrey Hank testified how the BOE does not have an affidavit form even if a campaign would attempt to get, in the instance of Plaintiff, over 200,000 affidavits from signors. (Exhibit P, p. 18-22). All undue burdens aside, without a guaranteed acceptable affidavit for individual signors, it would be unreasonable for Appellant to risk the effort and cost of securing signor affidavits only to find out after-the-fact that the affidavit form was insufficient. At the same March 24 meeting, Attorney Ellis Boal testified and discussed with Director Thomas, who affirmed that the BOE was applying the holding of Consumers to statutory initiatives, despite the language of the holding only applying to constitutional amendments. (Exhibit P, p. 24-26). On April 25, 2016, BOC member Norm Shinkle abruptly left in the middle of a BOC meeting, breaking quorum and preventing further discussion and action on an updated policy. This caused some relative excitement as reporters chased Mr. Shinkle out of the State Capitol as he claimed that he had a client to meet as the reason he left the meeting. It is clear from the record the Board was not willing to accept any reasonable means to rebut signatures.

At the May 12, 2016 BOC meeting, discussion continued on the policy update, with Director Thomas presenting an updated proposal to the BOC, and stating that the 1986 policy is “. . . . pretty laborious process with 1500 city and township clerks and 83 county clerks.” (Exhibit Q, p. 12). Mr. Thomas also stated how several local clerks had contacted the BOE and declined to rebut signatures, presumably for either Plaintiff or the Michigan Cannabis Coalition.

Appellees have not asserted any recognized interest, compelling or otherwise, justifying using the rebuttable presumption or the 1986 BOC to disqualify qualified electors signatures. Whatever the state’s interest is—it does not compel enforcement of the 1986 BOC policy under any reasonable rationale. The Supreme Court has recognized in other contexts, a state has a strong interest in ensuring that its elections are run fairly and honestly. Anderson v. Celebreeze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983). It also has a strong interest in ensuring that proposals are not submitted for enactment into law unless they have sufficient support. See id. at 788 n. 9, 103 S.Ct. at 1570 n. 9. Of course the state has an interest in preventing fraud too (and ironically Appellant’s use of the QVF and attempts to reform the rebuttable presumption policy are superior efforts to eliminate fraud than what Appellees 1986 BOC policy is).

Even if Appellees are correct on all arguments— which they are not—but for argument’s sake strict scrutiny does not apply, then there must at least be a reasonable or rational basis for prohibiting a qualified elector from participating in initiating legislation then threatening the qualified elector with criminal sanction if the qualified elector exercises his or her right to sign a petition again. Refusing a valid qualified elector’s signature because it is more than 180 days old does not serve any rational basis in this instance, particularly when Appellant has shown the validity of the signatures and those qualified electors are prohibited by law from signing a petition again under threat of imprisonment. “Whoever knowingly signs this petition more than once, signs a name other than his or her own, signs when not a qualified and registered voter, or sets opposite his or her signature on a petition, a date other than the actual date on which the signature was affixed, is violating the provisions of the Michigan Election Law.” MCL 168.482. The cumulative effect of these laws and policies places undue burdens upon and introduces unnecessary chaos into the initiatory process. People do not know whether to sign a petition once or twice and are scared to do so because of the criminal penalties as well as the fear of invalidating a prior signature due to the irrational policy of voiding all valid signatures of a qualified elector if there happens to be a duplicate signature. The 1986 BOC policy also violates equal protection of the laws— treating qualified electors disparately based on an arbitrary time limit. While this restriction is contentneutral, it places severe burdens on the process, as hundreds of thousands of qualified electors are prohibited by law from initiating legislation because their signature cannot be rebutted under any circumstance, and if they were to sign the petition again, the state threatens them with imprisonment. How can the state disenfranchise hundreds of thousands of people and threaten them with prison simply for trying to initiate legislation? What rational basis exists for disenfranchisement and arbitrarily precluding qualified electors the equal protection to engage in the initiative process?

Appellee cannot proffer any rational basis for completely eliminating the voices of 137,000-plus qualified electors on an issue supported by the majority of Michigan voters in this instance—neither the purity of elections, orderly process, preventing fraud, eliminating duplicates, or any of the typical recognized state interests are present in this case. The evidence is that there is sufficient support to place Appellant’s question on the ballot. The lower court record was undisputed that Michigan voters support

Appellant’s . . . 

[ . . . ]

 . . . normal, orderly, timely manner, and to override any statutory or constitutional time constraints that would prejudice placing this matter before the voters at the next regular election;

  • Award Appellant costs and Appellant’s counsel reasonable attorney fees; and
  • Grant such other relief as the court finds just or equitable under the circumstances.

 

Respectfully Submitted:

 

HANK LAW, PLLC

 

By: /s/ Jeffrey A. Hank (P71152)  

 

Attorney for Appellant

P.O. Box 1358

East Lansing, Michigan 48826

Telephone: (855) 426-5529

Facsimile: (888) 490-7750

 

Thomas Lavigne (P58395)

Matthew R. Abel (P38876)

Cannabis Counsel, PLC

Attorneys for Appellant

2930 E. Jefferson

Detroit, MI 48207

 

David Cahill (P24046)

Attorney for Appellant

1418 Broadway

Ann Arbor, MI 48105

(734) 769-0753

Dated: 8/30/2016

 

 

BRIEF IN SUPPORT OF MANDAMUS AND

DECLARATORY AND INJUNCTIVE RELIEF,

RELEVANT EXCERPTS

 

 

STATE OF MICHIGAN

IN THE COURT OF CLAIMS

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE a/k/a MILEGALIZE,

Plaintiff,

v.

RUTH JOHNSON MICHIGAN SECRETARY OF

STATE, CHRISTOPHER THOMAS DIRECTOR OF

BUREAU OF ELECTIONS, and BOARD OF STATE CANVASSERS,

Defendants.

________________________

Court of Claims Case No. 16-000131-MM

 

 

[ . . . ]

PETITIONING IS A FUNDAMENTAL

CONSTITUTIONAL RIGHT AND ANY LAW,

RULE, POLICY, OR PRACTICE WHICH

INFRINGES OR UNDULY BURDENS THE RIGHT IS SUBJECT TO STRICT SCRUTINY REVIEW

Controlling precedent is clear that the standard of judicial review for the questions presented by Plaintiff’s case is through the lens of a strict scrutiny analysis.

The US and Michigan Constitutions elevate the right to petition to a fundamental right, therefore for that fundamental right to be infringed, the government must have a compelling interest, accomplished by the least burdensome means, and narrowly tailored to achieve that end. U.S. Const., Am. I. Michigan’s Constitution of 1963, Article II—§ 9—Initiative and referendum; limitations; appropriations; petitions. Sec. 9. “The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum.”

See also Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) “[A]lthough the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution.” Petition signers as well as petition circulators have First Amendment rights infringed when laws restrict the petitioning process.

The nature of the rebuttable presumption itself of MCL 168.472a, and even more the absurdity of the unworkable 1986 BOC policy for the rebuttable presumption, viewed through the lens of strict scrutiny, should compel the Court in this instance to hold that as applied to statutory initiatives, and as to MILegalize in this in this instance, that these burdens limit citizens rights to participate in the initiative process and are unconstitutional. The US Supreme Court and Sixth Circuit agree on the basic principles:

The initiative process is not guaranteed by the U.S. Constitution (Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993)), but once a state confers upon its citizens the opportunity to participate in the initiative process, it may not limit that state-created right in contravention of federal fundamental law. Meyer v. Grant, 486 U.S. 414, 422-424, 108 S.Ct. 1886, 189293, 100 L.Ed.2d 425 (1988) (the right to circulate an initiative petition is “core political speech”).

Brock v. Thompson, 948 P2d 279, 287 fn 25; 1997 OK 127 (Okla. 1997). See also Moore et al., v. Johnson, No 14-11903, slip opinion p 9 (USDC ED MI, S Div; May 23, 2014) (John Conyers case):

“The Registration Statute is, in all material respects, indistinguishable from the statute held facially invalid by the United States Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008). The Sixth Circuit in Nader held that it was “undisputable” that the plaintiff suffered a serious limitation on his First Amendment rights–a limitation triggering application of strict scrutiny–when the statute was applied so as to disqualify signatures gathered by non-registered voters and to keep the candidate off the ballot. Id. at 475, 478. That is exactly what happened in this case. The Registration Statute was applied so as to disqualify Mr. Conyers’ signatures and keep him off the ballot. Nader holds that this amounts to a severe burden on Mr. Conyers’ First Amendment rights and requires the application of strict scrutiny. Id. at 475, 478. The reasoning of Nader also compels the conclusion that application of the Registration Statute severely burdened the First Amendment rights of the Plaintiffs who gathered the signatures that were disqualified.

The Registration Statute cannot survive strict scrutiny because it is not narrowly tailored to serve a compelling state interest. The State’s asserted interest is detecting and preventing election fraud. (See, e.g., ECF #27 at 25, where Secretary Johnson argues that “if strict scrutiny is required, the burden on Plaintiffs is justified by the State’s compelling interest in preventing fraud.”) Requiring circulators to register, Secretary Johnson contends, helps to combat fraud because the State knows where to find a registered voter “if questions arise regarding the validity or genuineness of signatures” (id.), and the State has the ability to subpoena a registered voter to provide testimony, if needed, in an investigation or prosecution of election fraud.

The State’s interest in combatting election fraud is compelling, but the State may protect that interest through a less restrictive means.”

Similar to the Conyers case, Plaintiff’s First Amendment rights, as well as the rights of both circulators and signors are being impermissibly burdened, and the state has no compelling interest. Even if the state does have a compelling interest of preventing fraud, using the QVF rather than the 1986 policy is how the state can accomplish that interest, and it can be accomplished through less burdensome and more narrowly tailored means.

The federal courts have viewed denial of ballot access with “general agreement” that these statutes “merit the closest examination” and cannot survive strict scrutiny review. Moore Id. citing Libertarian Party of Virginia v. Judd, 718 F.3d 308, (4th Cir. 2013) at 316-17. Since TUAC v. Austin, the Sixth Circuit has recognized that “Nader’s petition circulation activity constitutes core political speech, and any regulation of that speech is subject to exacting scrutiny. See Buckley v. American Consti-

tutional Law Foundation, Inc], 525 U.S. at 192 n. 12, 119 S.Ct. 636; id. at 210-11, 119 S.Ct. 636 (Thomas, J., concurring) (applying strict scrutiny because registration requirement impacted core political speech).” Nader v. Blackwell, 545 F3d 459, 475 (CA 6, 2008). This rule applies to the context of recalls in Michigan as well: “The circulation of recall petitions is core political speech.” Bogaert v. Land I, 572 F.Supp.2d 883, 900 (USDC WD Mich. 2008). In its second opinion, which came after Nader v. Blackwell had been published, the Bogaert v. Land court went into more detail:

This Court held in its opinion on the motion for preliminary injunction that Plaintiff had a substantial likelihood of prevailing on the merits because recall-petition speech is core political speech, it is subject to strict scrutiny, and the district residency and registration requirements are not narrowly tailored to achieve Michigan’s compelling interest in the integrity of recall petitions and the combat of election fraud. (Dkt. No. 37, Op. 30-39.) Bogaert v. Land II, 675 F.Supp.2d 742, 749 (WD Mich. 2009).

In this instance, Plaintiff is being denied initiative ballot access due to a constitutionally suspect 1986 BOC policy that has never been enforced and is the epitome of not being the least burdensome means to achieve the state’s interest (it is more like the most burdensome way), nor is it narrowly tailored. The consensus among experts is that the policy cannot even be reasonably be complied with. It has never been enforced. No one has even attempted to comply with it since 1986 until Plaintiff made good faith attempts in the past 7 months and found it impossible to comply, i.e. it was so unduly burdensome it made exercise of rights illusory. The 1986 BOC policy does not even achieve the state’s interest in the purity of elections because signor affidavits are not a sufficient quantum or proof for qualified elector status. Plaintiff’s argument of using the QVF would go farther in furthering the state’s interest of preventing fraud and ensuring qualified electors are petition signors than even the defendants are attempting to do. The Bureau is directed to use the QVF to canvass petitions as it is . . . so how can defendants argue that a 1986 policy that is unworkable is superior to the command of state law? It is of course, absurd, and the 1986 BOC policy must be declared unconstitutional on its face and as applied.

Plaintiff is prepared to rebut signatures if MCL 168.47a is not declared constitutional, but like any rebuttable presumption, Plaintiff is entitled to rebut once confronted with something to rebut by the BOE in its sample of Plaintiff’s petitions. Plaintiff deserves that due process. The first order of business is for the BOE to canvass the petitions. If the canvass actually reviews the signatures for qualified elector status as defendants are required to do, then defendants can only refuse to count those signatures if they are known to be defective, void for some other reason, or not potentially rebuttable.

[ . . . ]

 . . . the necessary number of signatures, and succeed or fail within the period such basis governs.”

This passage was quoted at the end of the 1974 OAG 4813, and was the basis for the AG’s opinion that the term for governor determines signature-gathering time periods. Consumers Power overruled the 1923 decision and 1974 OAG 4813 only as to constitutional initiatives. The reason: the constitutional provision for constitutional initiatives had been changed by then. A sentence had been added, and it was no longer self-executing. That sentence was not added for statutory initiatives. For them, the Hamilton v. Deland pronouncement that the governor’s term fixes the collection period remains good law, or at least compelling reasoning that if the period for collecting signatures for an initiative is not unlimited, it is at least 4 years, not 180 days. And since Art. 9, Sec. 2 is self-executing and was not affected by Consumers Power, and extending the holding of Wolverine Golf

Club, neither the rebuttable presumption or the 1986 BOC policy are constitutional as applied to statutory initiatives.

The 1986 BOC Policy Imposes Undue Burdens and Is Unconstitutional

The 1986 policy runs afoul of the First Amendment under a strict scrutiny analysis. The policy has no compelling state interest, it is not the least burdensome means of achieving a compelling interest even if one exists, and it is not narrowly tailored. In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Court held in determining whether an election law violates the First Amendment a court should weigh the burden of the restriction against the State’s interests:

Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Id. at 358, 117 S.Ct. 1364 (internal quotations and citations omitted); see also Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir.2008) (“Although a state need not present ‘elaborate, empirical verification’ of the weight of its purported justification when the burden is moderate, it must come forward with compelling evidence when the burden is higher”) (citations omitted). Bogaert v. Land II, 675 F.Supp.2d at 749-750 is another oft quoted case. Accordingly, even under flexible analysis, the scrutiny here should be strict: the proposed regulation must be narrowly tailored to serve a compelling state interest. Furthermore, the Bogaert v. Land II court found justification for not even bothering with the flexible approach, and rejected the distinction in petition types.

Defendant’s attempt to distinguish recallpetition circulation from other forms of petition circulation is not persuasive. Contrary to Defendant’s suggestion, the proposition that the registration and residency requirements pose only a moderate burden on recall-petition circulators is not simply a matter of common sense. In fact, the existing case law and common sense tend to refute Defendant’s argument for distinguishing recall petitions from initiative or candidate petitions. . . . [R]ecall-petition circulators resemble both initiative-petition circulators and candidate-petition circulators because they similarly seek ballot access. Bogaert v. Land II, 675 F.Supp.2d at 750-751.

This Court’s previous determination that § 957 posed a severe burden on recallpetition circulators was based on a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny. (Dkt. No. 37, Op. 34-36.) See Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 194, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999); Nader v. Brewer, 531 F.3d 1028,

1036 (9th Cir. 2008); Chandler v. City of Arvada, 292 F.3d 1236, 1242 (10th Cir. 2002); Lerman v. Bd. of Elections, 232 F.3d 135, 149 (2d Cir. 2000); Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir. 2000). Subsequent to this Court’s opinion on the preliminary injunction motion, the Sixth Circuit issued its opinion in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), in which it joined the other federal circuits in extending the principles established in Buckley regarding initiative-petition circulators to candidatepetition circulators. Id. at 475-76 (applying strict scrutiny and holding that Ohio’s registration and residency requirements for candidate-petition circulators violated the First Amendment). See also Yes on Term

Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (applying strict scrutiny to analyze Oklahoma’s ban on non-resident initiativepetition circulators).

None of Defendant’s arguments convince this Court that its previous determination that the registration and residency requirements of § 957 impose a substantial burden on Plaintiff’s First Amendment rights and are not narrowly tailored to Michigan’s compelling interest in the integrity of recall petitions and the combat of election fraud was erroneous. The Court stands by its previous analysis. Rather than reiterating that analysis herein, the Court reaffirms and adopts that analysis by reference and declares that the requirements in Mich. Comp. Laws § 168.957 that recall-petition circulators be registered to vote and be residents of the legislative district of the official to be recalled are unconstitutional as a violation of the First Amendment of United States Constitution, applicable to the State of Michigan through the Fourteenth Amendment. (Dkt. No. 37, Op. 33-39.)

Bogaert v. Land II, 675 F.Supp.2d at 752. In Buckley, the Supreme Court struck down a Colorado statute which required, inter alia, that initiative-petition circulators be registered voters. Id. The Court extended its holding in Meyer v. Grant, 486 U.S. at 414, in which it rejected Colorado’s ban on paying ballotinitiative petition circulators. Justice Ginsburg, writing for the Buckley majority, discussed the fundamental constitutional rights at stake in election petition circulation:

Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” First Amendment protection for such interaction, we agreed, is “at its zenith.” We have also recognized, however, that “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Buckley, 525 U.S. at 183 (internal citations omitted.).

In this case, as in Meyer, the requirement “imposes a burden on political expression that the State has failed to justify.” Id. at 428. Buckley, 525 U.S. at 194-195 (some internal citations omitted).

Keeping Buckley in mind, we examine the character and magnitude of the burden imposed by requiring both the rebuttable presumption and the 1986 BOC policy on First Amendment rights and the extent to which the law serves Michigan’s interests. Burdick v. Takushi, 504 U.S. 428, 433-434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Laws which are severely burdensome to constitutional freedoms must be narrowly tailored to serve compelling state interests, while less burdensome statutes receive less exacting scrutiny. California Democratic Party v. Jones, 120 S.Ct. at 2412.

The imposition of a rebuttable presumption requirement and the impossible to comply with 1986 BOC policy burdens the petitioners’ and others’ core freedoms of political expression and association. See Buckley, 525 U.S. at 183; Krislov, 226 F.3d at 858, 860-861. That is, petitioners may not associate for purposes of political expression by organizing nominating petition signature drives with whomever they wish. See Meyer, 486 U.S. at 424 (“The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”). It also limits the ability of petitioner’s to conduct a citizens campaign to educate Michigan voters over an extended period of time. In this case, Plaintiff MILegalize found it more effective and important to run an 11month campaign to educate Michigan voters and encourage discussion and inquiry into the proposal than a campaign limited to 180 days. Regardless of how long Plaintiff petitioned for, the initiative would be heard at the same election and the issue and language would remain the same.

Michigan law is analogous to the federal cases, and any rebuttable presumption requirement must also be strictly construed. “[T]he right to recall public officials is an extremely important one which must be carefully guarded by the courts [ . . . ] statutes governing recall should be construed in favor of the right’s exercise and [ . . . limitations on the right should be strictly construed[.]” Schmidt v. Genesee Co Clerk, 127 Mich. App. 694, 701-702; 339 N.W.2d 526 (1983). Further, “it is always in the public interest to prevent a violation of a party’s constitutional rights.” G&V Lounge Inc v. Michigan Liquor Control Comm’n., 23 F.3d 1071, 1079 (6th Cir. 1979) citing Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 383 (1979). The state has failed to justify any reason for enforcement of both the rebuttable presumption and the 1986 BOC policy.

“Statutes must be struck down if they reduce the number of qualifying initiatives and the exchange of ideas.” Meyer, 486 U.S. at 421. Both MCL 168.472a and the BOC’s 1986 rebuttable presumption policy that is impossible to comply with must be struck down as unconstitutional.

THE TERMS “REBUTTABLE PRESUMPTION”

AND “STALE” ARE UNCONSTITUIONALLY VAGUE UNDEFINED

A law involving a fundamental right is unconstitutionally vague under due process standards if it does not give a person or ordinary intelligence fair notice of what is proscribed and is so vague and standardless that it allows for arbitrary and discriminatory enforcement or that it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,”. Village of Hoffman Estates, 455 U.S. 489 (1982); United States v. Harriss, 347 U.S. 612, 617, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88; Herndon v. Lowry, 301 U.S. 242. Living under a rule of law entails various suppositions, one of which is that “[all persons] are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453.

What does the term Stale mean? There has been little debate in this matter about the definition of staleness—although it has been generally acknowledged that it is a vague concept and there is no definition in chapter 168 of the MCL or otherwise in state law nor has it been previously defined by the Court. The only precedential authority available comes from the pleadings of the state’s top election lawyers in 1986 in the Consumers Power case. In Consumers the adverse parties briefed the court in general agreement that staleness referred to a duplicate or otherwise defective signature, or a signature dated beyond the prior gubernatorial election period. Prior to the invention of the QVF and computer technology that is now used in elections management, it was difficult for the BOE to canvass a petition for duplicates, especially since the BOE uses a random sampling method. The longer a petition was in the field the likelihood of duplicates increases as people resign either out of forgetfulness or for another example because they think it is a new petition from the last one they signed.

What does the term Rebuttable Presumption mean in MCL 168.472a? It is anyone’s guess. The term “presumption” has a very special meaning in law. A presumption in law is a logical inference which is made in favor of a particular fact, typically as a form of evidence. The Uniform Commercial Code (UCC) defines “presumption” and “presumed” as follows: “Presumption” or “presumed” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence. [UCC 1-201 (31)]. Black’s Law Dictionary, Sixth Edition, defines “presumption” as follows:

A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. . . . A legal device which operates in the absence of other proof to require that certain inferences be drawn from the available evidence.

Black’s Law Dictionary Online, 2d Ed, defines rebuttable presumption as “A presumption which may be rebutted by evidence. Otherwise called a “disputable” presumption. A species of legal presumption which holds good until disproved.” Given these definitions, in the absence of clear definition in the context, the best quantum of proof to rebut the staleness of any signature, if so required, is to use or have access to the QVF. Defendants have the best access, and they must canvass every signature. If the canvass finds insufficient signatures and the signatures challenged include those beyond 180 days old, then Plaintiff has an opportunity to rebut the signatures just as is law and custom for Plaintiff to have the opportunity to rehabilitate any other signatures the BOE or BOC or any other person challenge. The rebuttable presumption is an after-the-fact individualized by-the-signature opportunity afforded to Plaintiff if the BOE or BOC find by using the QVF that some signatures are stale or void for the reason of not being qualified electors or otherwise void. Defendants must be ordered to canvass the petitions and if a signature is alleged stale for some articulable reason such as being defective (duplicate, wrong county, no date, etc.) or the signor is not a qualified elector, the Plaintiff has the opportunity to disprove any allegation on an individualized basis. For reasons of due process defendants cannot just lump all signatures in together and arbitrarily disqualify them. Every signature deserves equal protection, and the due process of individualized suspicion or disqualification that affords an opportunity to contest the determination.

Pursuant to state law the QVF must be used to rebut the presumption of staleness for a signature on an initiatory petition dated more than 180 days prior to submission to the Bureau of Elections. Defendants have and do use other more narrowly-tailored tools to achieve the state’s interest of ensuring only qualified electors are placing initiatives on the ballot—namely using the QVF to canvass the petitions.

The state-mandated form of petitions properly says that “knowingly” signing more than once is a violation of state law. However, without proof of a knowing violation . . . 

[ . . . ]

. . . However, when “a party seeks a preliminary injunction on the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.” Libertarian Party of Ohio v. Husted, ___F.3d___, 2014 WL

1703856 at *8 (6th Cir. May 1, 2014), quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). “It is well-settled that loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Libertarian Party of Ohio, 2014 WL 1703856 at *9, citing Connection Distrib. Co., 154 F.3d at 288. See also

ACLU of Kentucky v. McCreary County, 354 F.3d 438, 445 (6th Cir. 2003) (“[W]hen reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated”), citing Elrod v. Burns, 427 U.S. 347, 373 (1976). On the issue of harm to others, when a plaintiff demonstrates “a substantial likelihood that a challenged law is unconstitutional, no substantial harm can be said to inhere in its enjoinment.” Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 400 (6th Cir. 2001), citing Connection Distrib. Co., 154 F.3d at 288. “It is always in the public interest to prevent a violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23

F.3d 1071, 1079 (6th Cir. 1994), citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979). Injunctive relief is an extraordinary remedy that is ordered by a court only when justice requires, there is no adequate remedy at law, and there is real and imminent danger of irreparable injury. See, e.g., Acer Paradise, Inc v. Kalkaska County Rd. Comm’n, 262 Mich. App. 193, 684 N.W.2d 903 (2004).

In this case, Plaintiff has demonstrated a likelihood of success on the merits. Additionally, Plaintiff will suffer irreparable injury without an injunction because its . . . 

[ . . . ]

  • Award Plaintiff’s counsel reasonable attorney fees; and
  • Grant such other relief as the court finds just or equitable under the circumstances.

 

Respectfully Submitted:

 

HANK LAW, PLLC

 

By: /s/ Jeffrey A. Hank (P71152)

Attorney for Plaintiff

P.O. Box 1358

East Lansing, Michigan 48826

Telephone: (855) 426-5529 Facsimile: (888) 490-7750

Thomas Lavigne (P58395)

Matthew R. Abel (P38876)

Cannabis Counsel, PLC

Attorneys for Plaintiff

2930 E. Jefferson

Detroit, MI 48207

David Cahill (P24046)

Attorney for Plaintiff

1418 Broadway

Ann Arbor, MI 48105

(734) 769-0753

 

Date: June 6, 2016

COMPLAINT TO SHOW CAUSE, MANDAMUS,

REQUEST FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF RELEVANT EXCERPTS

 

 

STATE OF MICHIGAN

IN THE COURT OF CLAIMS

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE A/K/A MILEGALIZE,

Plaintiff,

v.

RUTH JOHNSON Michigan Secretary of State,

CHRISTOPHER THOMAS Director of Bureau of Elections, and BOARD OF STATE CANVASSERS,

Defendants.

________________________

Case No. 16-000131-MM

 

 

NOTICE: This complaint involves a ruling that a provision of the constitution, a statute, rule or regulation, or other State Governmental action is invalid.

NOTICE: There is a related case in this court concerning some of the same or similar constitutional claims, Committee to Ban Fracking in Michigan v. Johnson et al., 16-___-, Honorable Stephen L. Borrello.

[ . . . ]

 

 . . . are not fully canvassed; or $1.1 million dollars if all of Plaintiff’s submitted signatures are not fully canvassed.

COUNT II–

The 1986 BOC Policy Violates the 1st Amendment,

US and Michigan Constitutions and Fails Strict

Scrutiny Review by Placing Undue Burdens on a Fundamental Right

  1. Plaintiff restates each prior allegation as if restated herein.
  2. Plaintiff brings this civil rights action under 42 U.S.C. § 1983 et seq., US Constitution First Amendment, and Michigan Constitution Article I, Sections 1, 3, 5, 17, AND ARTICLE II, Sections 1 and 4.
  3. According to affidavits of Plaintiff’s campaign managers, it is logistically and financially not just overly burdensome, but impossible, to secure affidavits from petition signors more than 180 days old, and to secure affidavits from local clerks. (Exhibits T, U).
  4. Local clerks have no legal duty to assist in the rebuttal process, and BOE Director Thomas stated several times that clerks do not have a legal duty to comply with a petitioner’s request to assist in rebutting signatures.
  5. Upon information and belief at least one other ballot question committee, the Michigan Cannabis Coalition, also attempted to rebut signatures with county clerks, and out of 83 possible clerks, only the Macom and Antrim county clerks attempted to comply. Regardless, county clerks were not the clerks mandated by the 1986 policy to provide rebuttal certification.
  6. Obviously, if clerks refuse to assist or comply with the rebuttal of signatures, there is no way for a person to actually exercise the right.
  7. Upon information and belief, several clerks refused to assist both MILegalize and the Michigan Cannabis Coalition, and correspondence from the BOE to clerks that contacted the Bureau in writing the BOE instructed clerks that there was no legal authority for them to rebut. (Exhibit I).
  8. Upon information and belief, none of the 1500-plus elected or appointed local or county clerks in Michigan have ever received any training or guidance from the BOE on the rebuttable presumption policy.
  9. The 1986 BOC policy also seems to run afoul of the 1978 Headlee amendment, purporting to require an unfunded mandate to local clerks to perform a duty state defendants are required to perform (canvassing a statewide petition), while not providing appropriations to do so, in violation of Art. 9, Sec. 29.
  10. The state’s compelling interest in this instance is in requiring that only qualified electors sign petitions to place matters on statewide ballots and preventing election fraud. To the extent there is an additional interest in the purity of elections, the use of signor affidavits does nothing to satisfy that interest. A signor could attest to being registered, but not actually be. Clerk certification could satisfy qualified elector status with more reliability, but only on a case-by-case basis and only locally, with nowhere near the most superior quantum of proof, the SOS’s Qualified Voter File, which the BOE maintains with far superior capabilities for canvassing the petitions. 154. Requiring either signor or clerk affidavits or certifications is not narrowly tailored to achieve any compelling state interest, nor is it the least burdensome means to accomplish any interest. In fact it is about as burdensome as it can get—it extinguishes any exercise of the right altogether.
  11. The enforcement of both the 1986 policy and the rebuttable presumption of MCL 168.472a harm Plaintiff financially, at least $690,000.00 in damages for actual costs of signatures Plaintiff has been unjustly deprived of if any of Plaintiff’s submitted signatures are not fully canvassed; or $1.1 million dollars if all of Plaintiff’s submitted signatures are not fully canvassed.

COUNT III–

Both the Terms “Rebuttable Presumption” and

“Stale” of MCL 168.472a Violate the US and

Michigan Constitutions, the First Amendment and are Void for Vagueness

  1. Plaintiff restates each prior allegation as if restated herein.
  2. Plaintiff brings this civil rights action under 42 U.S.C. § 1983 et seq. US Constitution First Amendment, and Michigan Constitution Article I, Sections 1, 3, 5, 17, AND ARTICLE II, Sections 1 and 4.
  3. Under well-established rules of statutory construction, every statute is to be enforced according to its plain meaning. Roberts v. Mecosta County Gen. Hosp., 466 Mich. 57, 63; 642 N.W.2d 663 (2002). And “[e]ach word of a statute is presumed to be used for a purpose.” Levy v. Martin, 463 Mich. 478, 493494; 620 N.W.2d 292 (2001), quoting Robinson v.

Detroit, 462 Mich. 439, 459; 613 N.W.2d 307 (2000). Effect must be given to “every word, phrase, and clause in a statute” so as to “avoid an interpretation that would render any part of the statute surplusage or nugatory.” State Farm Fire and Cas Co. v. Old Republic Ins. Co., 466 Mich. 142, 146; 644 N.W.2d 715 (2002).

  1. The term “rebuttable presumption” is not defined in Michigan election law.
  2. As noted above, the uses of “rebuttable presumption” in Michigan election law all include the mandatory canvas of the QVF to determine qualified elector status, and the ability to rebut a determination that a person is not a qualified elector as indicated by the QVF, after-the-fact. The same should be true for the unique use of the term “rebuttable presumption” in MCL 168.472a.
  3. The term “stale” is not defined in Michigan election law.
  4. Two of the state’s top recognized elections lawyers, Mr. John Pirich and Mr. Gary Gordon, were stumped and could not provide any coherent definition during joint testimony at BOC meetings on when asked what stale meant, and in their written submissions.
  5. The BOE also could not define the term stale. No other testimony was offered by any party as to the definition of stale in MCL 168.472a.
  6. According to briefs filed in the Consumers Power case by some of the state’s top elections attorneys John Pirich, Gary Gordon, Michael Hodge and others, as well as the position of the State of Michigan and the People’s Lawyer Attorney General Frank Kelley, the MCL 168.472a rebuttable presumption was enacted largely to prevent the prevalence of duplicates that can become more frequent the longer a petition is circulated, as normal persons on the street either forget whether they have signed the petition, or may even think it is a different petition they are signing. (See generally Exhibit S).
  7. The other argument raised in 1986 for the definition of stale was that it was meant to preclude signatures collected prior to the last gubernatorial election which bounds the petition campaign. (See generally Exhibit S).
  8. The enforcement of both the 1986 policy and the rebuttable presumption of MCL 168.472a harm Plaintiff financially, at least $690,000.00 in damages for actual costs of signatures Plaintiff has been unjustly deprived of if any of Plaintiff’s submitted signatures are not fully canvassed; or $1.1 million dollars if all of Plaintiff’s submitted signatures are not fully canvassed.

COUNT IV–

Both the 1986 BOC Policy and the Rebuttable

Presumption of MCL 168.472a Violate 1963 Michigan Constitution Art. 2, Sec. 9

  1. Plaintiff restates each prior allegation as if restated herein.
  2. Plaintiff brings this civil rights action under 42 U.S.C. § 1983 et seq. and Michigan Constitution Article I, Sections 1, 3, 5, 17, AND ARTICLE II, Sections 1 and 4.
  3. The Legislature is prohibited by the selfexecuting language of Art. 2, Sec. 9, from enforcing the rebuttable presumption of MCL 168.472a, as Art. 2, Sec. 9 is self-executing, as opposed to Art. 2, Sec. 12, constitutional amendments, which section does not have self-executing language.
  4. The Supreme Court already ruled that MCL 168.472 is unconstitutional “The requirements of this section constitute an unnecessary and unreasonable restraint on the constitutional right to initiate legislation, as provided for by Const. 1963, art. 2, § 9.” Wolverine Golf Club v. Secretary of State, 384 Mich. 461; 185 N.W.2d 392 (1971).
  5. Wolverine declared Sec 472 unconstitutional, and the same grounds and reasoning apply in this case to Sec 472a:

Sec. 472. Petitions to initiate legislation shall be filed with the secretary of state not less than 10 days before the beginning of a session of the legislature. History: 1954, Act 116, Eff. June 1, 1955. Constitutionality: The requirements of this section constitute an unnecessary and unreasonable restraint on the constitutional right to initiate legislation, as provided for by Const. 1963, art. 2, § 9. Wolverine Golf Club v. Secretary of

State, 384 Mich. 461; 185 N.W.2d 392

(1971).

  1. Considering the language of Art. 2, Sec. 9; the Wolverine ruling; the AG opinions; and historical facts, MCL 168.472a violates Art. 2 Sec. 9 on its face and as applied.
  2. The enforcement of both the 1986 policy and the rebuttable presumption of MCL 168.472a harm Plaintiff financially, at least $690,000.00 in damages for actual costs of signatures Plaintiff has been unjustly deprived of if any of Plaintiff’s submitted signatures are not fully canvassed; or $1.1 million dollars if all of Plaintiff’s submitted signatures are not fully canvassed.

COUNT V–

Unlawful Regulatory Takings Under the 5th Amendment

  1. Plaintiff restates each prior allegation as if restated herein.
  2. Plaintiff brings this civil rights action under 42 U.S.C. § 1983 et seq.
  3. Plaintiff raised and spent from its donor base approximately $1.1 million to achieve ballot qualification for this measure. Plaintiff’s largest donor attests that he invested $450,000.00 in the campaign in reliance of signatures his money was purchasing being fairly and lawfully canvassed by defendants. Plaintiff’s foreseeable and reasonable investment backed expectations that signatures beyond 180 days old at the time of filing, were either not subject to any rebuttable presumption, or if they were, it is an after-the-fact of canvassing due process opportunity for Plaintiff to rebut the presumption that any signature the BOE or BOC rejects is valid and not stale, not the unconstitutional 1986 BOC policy that would be used as the quantum of proof for rebutting staleness.
  4. The enforcement of this policy, and any attempt to enforce SB776 or any other time period that does not include all of Plaintiff’s signatures as potentially valid with a fair opportunity for rebuttal after canvassing, is a regulatory takings of Plaintiff’s property in violation of Plaintiff’s constitutional 5th amendment rights as the signatures that are being disqualified have a fair-market value of a minimum value of approximately $690,000.00 that Plaintiff is being deprived of through the unlawful and unjust actions of defendants, without due compensation.
  5. In this instance, Plaintiff seeks redress in the form of financial compensation from defendants if the court finds for any reason that defendants that have deprived Plaintiff of valuable use of its property, in the amount of at least $690,000.00, or the fair market value for Plaintiff to purchase signatures for an initiative under the now enacted 180-day strict time limit of SB776, is approximately $2,000,000.00.
  6. The Fifth Amendment of the United States Constitution provides people with protections against takings of their property without public purpose and just compensation. Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984).

  1. Public purpose must be proven by defendant in order to justify a taking.
  2. Article I Section 1 of the Michigan Constitution perhaps says it best: All power is inherent in the people. Government is instituted for their equal benefit, security and protection.
  3. This constitutional provision together with the long list of constitutional rights being abridged as argued throughout this Complaint, defendant certainly lacked a public purpose in taking plaintiff’s property.
  4. Absent public purpose the taking fails the

5th Amendment. Hawaii Housing Authority v.

Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984).

  1. Even if public purpose were found, just compensation shall be paid for all takings, which has been judicially interpreted to mean the fair market value. In a 180-day world this would be $3,000,000, because that is what it would take.
  2. The United States Supreme Court’s Justice Oliver Wendall Holmes held in 1922 that “while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.” Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922).
  3. In determining whether a regulation effectively deprives an owner of property depends in part on the extent to which the regulation has interfered with distinct investment backed expectations of the property owner. Penn Central v. New York City, 438 U.S. 104, 124 (1978).
  4. Plaintiff invested about $1.1 million with plaintiff’s distinct investment backed expectation of getting the ballot question on the November 2016 ballot.
  5. Defendant’s total abridgment of this expectation constitutes a regulatory taking, for which plaintiff is entitled to both a striking down of the 180-day policy and statute as well as just compensation for the temporary taking and attorney’s fees.

COUNT VI–

Due Process Violations, Arbitrary and Capricious Actions Violate 5th and 14th Amendments

  1. Plaintiff restates all prior allegations as if restated herein.
  2. The enforcement of both the 1986 BOC policy and the rebuttable presumption of MCL 168.472a are both arbitrary and capricious. A ruling of an administrative agency “is arbitrary and capricious when it lacks an adequate determining principle, when it reflects an absence of consideration or adjustment with reference to principles, circumstances, or significance, or when it is freakish or whimsical.” Wescott v. Civil Serv. Comm., 298 Mich. App. 158, 162; 825 N.W.2d 674 (2012). In this instance, when defendants did not even enforce the statute in question for 13 years because it was the state’s position it was unconstitutional, then defendants attempted to enforce a 1986 policy which the BOC had no authority to enact, then it used that same 1986 policy which everyone acknowledges is unworkable, all while having a computer database, the QVF, which can prove the registration of every Michigan qualified elector, certainly lacks principle and consideration, fails to adjust when clearly needed to real world facts, and is so whimsical when the state is also required under current law to canvass petitions using the QVF!
  3. The failure to canvass Plaintiff’s petitions, when Plaintiff has offered good faith proof of qualified elector status to rebut any presumption of staleness under MCL 168.472a, and Plaintiff not being offered a fair opportunity to dispute any presumption after a fair canvass of Plaintiff’s petitions has occurred, violates Plaintiff due process rights, and the due process rights of 200,000-plus signors of Plaintiff’s petitions whose signatures are more than 180 days old.

CONCLUSION & RELIEF REQUESTED

While Plaintiff presents a unique factual scenario unlikely to ever be presented again to this court, there are several important questions of fundamental constitutional law that are of first impression to this Court and that are capable of repetition yet evading judicial review. The case affects the fundamental constitutional rights of all 10 million-plus Michigan voters or potential voters. Plaintiff is clearly entitled to relief at the very minimum of four immediate rulings. First for a writ of mandamus to the BOE and BOC to proceed with canvassing and qualification of the initiative; Second, a declaratory ruling that the 1986 policy of the Bureau of Elections does not apply to the rebuttable presumption under MCL 168.472a; Third, a declaratory ruling that the rebuttable presumption of MCL 168.472a is unconstitutional; and Fourth that SB776 is inapplicable as a matter of law to Plaintiff and cannot be retroactively applied.

[ . . . ]

  • Declare SB776 unconstitutional as a violation of the First Amendment;
  • Declare SB776 unconstitutional as a violation of the 14th Amendment.
  • Enjoin defendants from applying SB776, or any other statute or administrative rule which restricts the length of the signature collection period for statutory initiatives;
  • Award Plaintiff at least $690,000.00 in damages for actual costs of signatures Plaintiff has been unjustly deprived of if any of Plaintiff’s submitted signatures are not fully canvassed; or $1.1 million dollars if all of Plaintiff’s submitted signatures are not fully canvassed.
  • Award Plaintiff costs and punitive damages for the egregious nature of Defendants actions and due to the important public interests at stake which Plaintiff’s actions are protecting and advancing;
  • Award Plaintiff’s counsel reasonable attorney fees; and
  • Grant such other relief as the court finds just or equitable under the circumstances.

 

Respectfully Submitted:

 

HANK LAW, PLLC

 

By: /s/ Jeffrey A. Hank (P71152)

Attorney for Plaintiff

P.O. Box 1358

East Lansing, Michigan 48826

Telephone: (855) 426-5529 Facsimile: (888) 490-7750 Thomas Lavigne (P58395)

Matthew R. Abel (P38876)

Cannabis Counsel, PLC

Attorneys for Plaintiff

2930 E. Jefferson

Detroit, MI 48207

 

David Cahill (P24046)

Attorney for Plaintiff

1418 Broadway

Ann Arbor, MI 48105

(734) 769-0753

 

Date: June 6, 2016

 

 

FREEDOM OF INFORMATION RELATED

CORRESPONDENCE

 

 

 

EMAILS BETWEEN

CHRISTOPHER THOMAS (MDOS) AND

EVELYN QUIROGA/SALLY WILLIAMS (MDOS)

(MAY 24, 2016)

 

 

From: Thomas, Christopher (MDOS)

Sent: Tuesday, May 24, 2016 10:59 AM

To: ‘Carol A. Vernon’; Quiroga, Evelyn (MDOS); Williams, Sally (MDOS)

Subject: RE: Michigan Cannabis Coalition–Request to Verify Signatures

I am not aware of a consistent response. My comments last week were that there is no requirement for you to honor these request. You are not prohibited from doing so either.

_____________________________

From: Carol A. Vernon

              [mailto:gratiotcountyclerk@yahoo.com]

Sent: Tuesday, May 24, 2016 10:45 AM

To: Quiroga, Evelyn (MDOS); Thomas, Christopher (MDOS); Williams, Sally (MDOS)

Subject: Michigan Cannabis Coalition–Request to Verify Signatures

I have received a request from the Michigan Cannabis Coalition to verify Gratiot petition signatures and sign an affidavit.

I believe Chris spoke to this topic and as clerks we can decline to do so.

To remain consistent with other counties, is there a specific response that is being provided to this request?

 

Carol A. Vernon,

Gratiot County Clerk

214 E. Center Street, Suite 16

Ithaca, MI 48847

(989) 875-5215

Fax (989) 875-5254

EMAILS BETWEEN CHRISTOPHER THOMAS

(MDOS) AND KRISTEN MILLARD

(MAY 25, 2016)

 

 

From: Thomas, Christopher (MDOS)

Sent: Wednesday, May 25, 2016 11:39 AM To: ‘Kristen Millard’

Subject: RE: Michigan Cannabis Coalition

You are neither obligated nor prohibited from doing the work. If you should decide to do the work, you must review each one against voter registration records (QVF or master card). There is some indication that that they are trying to get clerks to sign the affidavit based on their “verification” of the registration status. Signing their affidavit without verifying for yourself the registration status of each person on their list would be inappropriate.

_____________________________

From: Kristen Millard

          [mailto:kmillard@co.montcalm.mi.us] Sent: Wednesday, May 25, 2016 10:27 AM

To: Thomas, Christopher (MDOS)

Subject: Michigan Cannabis Coalition

Hi Chris,

I received a packet of petitions today from the Michigan Cannabis Coalition asking me to verify signatures. I’m assuming nothing has changed and I am not obligated to check these. Is that correct?

 

Thanks,

Kris

EMAILS BETWEEN THOMAS LUITJE (MDOS)

AND NANCY HUEBEL

(MAY 25, 2016)

 

 

From: Luitje, Thomas (MDOS)

Sent: Wednesday, May 25, 2016 10:57 AM To: ‘Nancy Huebel’

Subject: RE: Michigan Cannabis Coalition

Hi Nancy,

I’ve no idea. I’ll forward to someone who might know.

                                     Tom

___________________________

From: Nancy Huebel

            [mailto:nhuebel@ioscocounty.orq]

Sent: Wednesday, May 25, 2016 10:52 AM

To: Luitje, Thomas (MDOS); Pierce, Carol (MDOS)

Subject: Michigan Cannabis Coalition

Importance: High

Tom,

In today’s mail I received the attached. Do I check my records and respond?

Look forward to hearing from you.

                                                    /s/ Nancy J. Huebel                  

Iosco County Clerk

422 W. Lake Street

P.O. Box 838

Tawas City, Michigan 48764

(989) 362-3497

(989) 984-1012 Fax

                                        www.iosco.net

EMAILS FROM JAMES R. POWERS

TO MDOS-FOIA

(JUNE 7, 2016)

 

 

From: Jim Powers

To: MDOS-FOIA

Subject: Michigan Freedom of Information Act Request Date: Tuesday, June 07, 2016 3:18:10 PM

____________________________________

James R. Powers

8175 Virginia Park

Center Line, MI 48015

Michigan Department of State

ATTN: FOIA Coordinator

P.O. Box 30204

Lansing, MI 48918

To the Michigan Department of State FOIA Coordinator,

Under the Michigan Freedom of Information Act § 15.231 et seq., I am requesting an opportunity to inspect or obtain copies of public records that were sent by the department, or one of its agencies, to any Michigan county clerks between the dates of January 1, 2016, and June 7, 2016, which reference any of the following:

  1. MCL 168.472a or
  2. The 1986 Board of Canvassers policy regarding the rebuttable presumption contained in

MCL 168.472a

or

          c.    Marijuana legalization

If there are any fees for searching or copying these records, please inform me if the cost will exceed $200.00. However, I would also like to request a waiver of all fees in that the disclosure of this requested information is in the public interest. This information is not being sought for commercial purposes.

The Michigan Freedom of Information Act requires a response to this request within five days. If access to the records I am requesting will take longer than that amount of time, please contact me with information about when I might expect copies or the ability to inspect the requested records.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.

This communication has been sent via both US and electronic mail.

 

Respectfully,

 

James R. Powers jim@mp4c.net

248-925-6928

 

EMAIL CORRESPONDENCE

LORI BOURBONAIS (MDOS)

(JUNE 13, 2016)

 

 

From: Williams, Sally (MDOS)

Sent: Monday, June 13, 2016 8:35 AM

To: Bourbonais, Lori (MDOS)

Subject: FW: Michigan Cannabis Coalition–Request to Verify Signatures

For the FOIA, here is all I was able to find in my email.

_____________________________

From: Williams, Sally (MDOS)

Sent: Tuesday, May 24, 2016 11:37 AM

To: Joe Rozell (rozellj@oakgov.com)

Subject: Fw: Michigan Cannabis Coalition–Request to Verify Signatures

Here is what we’ve told others . . . 

_____________________________

From: Thomas, Christopher (MDOS)

Sent: Tuesday, May 24, 2016 10:59:16 AM

To: Carol A. Vernon; Quiroga, Evelyn (MDOS); Williams, Sally (MDOS)

Subject: RE: Michigan Cannabis Coalition–Request to Verify Signatures

I am not aware of a consistent response. My comments last week were that there is no requirement for you to honor these request. You are not prohibited from doing so either.

_____________________________

From: Carol A. Vernon

           [mailto:gratiotcountyclerk@vahoo.com]

Sent: Tuesday, May 24, 2016 10:45 AM

To: Quiroga, Evelyn (MDOS); Thomas, Christopher (MDOS); Williams, Sally (MDOS)

Subject: Michigan Cannabis Coalition–Request to Verify Signatures

I have received a request from the Michigan Cannabis Coalition to verify Gratiot petition signatures and sign an affidavit.

I believe Chris spoke to this topic and as clerks we can decline to do so.

To remain consistent with other counties, is there a specific response that is being provided to this request?

 

Carol A. Vernon

Gratiot County Clerk

214 E. Center Street, Suite 16

Ithaca, MI 48847

(989) 875-5215

Fax (989) 875-5254

 

 

               

FREEDOM OF INFORMATION ACT NOTICE

LETTER FROM FOIA COORDINATOR

TO JAMES POWERS

(JUNE 14, 2016)

 

 

STATE OF MICHIGAN

Ruth Johnson, Secretary of State

Department of State Lansing

June 14, 2016

FREEDOM OF INFORMATION ACT NOTICE

James R. Powers

Via Email: jim@mp4c.net

Dear Mr. Powers,

The Department of State (Department) acknowledges receipt of your request for records and has processed it under the provisions of the Michigan Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq. Your request was sent electronically and in accordance with MCL 15.235(1), is considered received on the business day following its transmission (or on June 8, 2016). This notice is issued in response to your request, a copy of which is enclosed and incorporated herein.

Your request for copies of the following records is granted as to existing, nonexempt public records that are determined to be responsive to your request:

“ . . . records that were sent by the department, or one of its agencies, to any Michigan county clerks between the dates of January 1, 2016, and June 7, 2016, which reference any of the following: (a) MCL 168.472a, or (b) the Board of State Canvassers policy regarding the rebuttable presumption contained

in MCL 168.472a, or (c) marijuana legalization.”

Copies of the responsive records are enclosed with this notice and given the limited number of pages, are provided without charge.

Please be advised that the Department’s FOIA Procedures and Guidelines can be accessed at www. michigan.gov/sos, under the “FOIA” tab at the bottom of the page.

 

Sincerely,

 

                                              /s/ Melissa Malerman               

FOIA Coordinator

Michigan Bureau of Elections

 

BOARD OF STATE CANVASSERS MEETING,

RELEVANT EXCERPTS (DECEMBER 3, 2015)

 

 

[December 3, 2015 Transcript, p. 40]

MR. HANKS: . . . was policy adopted by the Board. It doesn’t require Legislation, just like the out of State circulator issue, you have the authority to do so, thanks.

MS. PERO: This is the Statute here, right that it shall be rebuttably presumed, the Statute.

MR. THOMAS: It is the Statute, however,—

MS. PERO: This is how we chose to—

MR. THOMAS: Yes, it’s not really simply executing, because it needs something from the Board—it was a tough decision, process to come up with that, and things are different.

 I mean you know, because one of the things in there in terms of the second piece either the sign—or the clerk could say that that person was in fact registered during the hundred and eighty days. Well, the QVF was not in place then.

 So our data does show exact history of where and when people were registered. So there is new data that did not exist back then.

MS. BRADSHAW: Is there any further business for the Board today? Hearing none, I will entertain a motion to adjourn.

MS. MATUZAK: So moved.

    

BOARD OF STATE CANVASSERS MEETING,

RELEVANT EXCERPTS (JANUARY 14, 2016)

 

 

[January 14, 2016 Transcript, p. 7]

MR. THOMAS: . . . the burden of the filer in advising us with the registration record showing that the person is registered to vote when they signed it and again at some period during the 180 day period. So, there were two records that had to be filed. To my knowledge, nobody has ever done this. That submitted to us signatures to be rebutted under presumption.

 It was brought up by Mr. Hanks that the current state of voter registration has changed significantly with a qualified voter file and that it would be much more efficient to use that as a means to satisfy those two requirements. We have concurred in that since the qualified voter file, in fact, does contain that information and could be made available to the petitioners for the purposes of assisting them in rebutting the stale signatures.

 So, we put this out for comment, and we received 16 written comments that we have provided to you. I thought we could use today as an opportunity for any of those folks or anyone else who would like to publicly comment further on the record about the proposed policy.

MR. SHINKLE: (Cellular Telephone Ringing) That was my mom.

MR. THOMAS: This is pretty exciting stuff. So, anyway it’s an opportunity today for folks if they wanted to come forward. We have a couple slips here

that have been provided to the Chair of people that would like to testify and further amplify their written comments. And then at some point, we will create a document that goes through these and we will provide our comments to those for your review and bring it to you.

MR. SHINKLE: Can I ask Chris a question?

MS. BRADSHAW: Yeah, go ahead.

MR. SHINKLE: Before we get into the testimony, in fact, the 180 Day Rule is exactly 180 days since no one has ever come to use the rebuttable presumption. That’s how it has worked no matter what the language says, and if this recommended policy goes into effect, what would the 180 days become? Is there a limit on it or is it the Governor’s term of office?

MR. THOMAS: Well, the Governor’s term of office still applies. So, signatures have to be gathered for constitutional amendments and initiations of legislation within that—those parameters beginning and ending of the term. So, 180 days— you could not extend back beyond the term of the election of a Governor, so that’s—that would still survive.

 Effectively you’re correct; nobody has attempted to do it. The volume that you would need for . . . 

[ . . . ]

MS. BRADSHAW: With that, I think we will open up the floor for discussion. I have a card here for Gary Gordon representing the Michigan Chamber of Commerce.

MR. GORDON: Thank you. Gary Gordon appearing on behalf of the Michigan Chamber of Commerce, and joining me at the table also is John Pirich.

 I would like to, if I may, add a little historic perspective that I think helps to understand this overall issue. This statute was enacted in 1973. Right after it was enacted, the Attorney General issued an Opinion finding that it was unconstitutional. It was never applied until 1986. And in 1986 a lawsuit was filed very close to the election and very close to the election deadlines which resulted in an Opinion by the Ingham County Circuit Court finding that the statute was indeed constitutional.

 The existing policy is not a policy that was adopted after—after a long consideration, and we are treating it like its some kind of Holy Grail that was—that was adopted after—after, you know, great thought and so on.

 This policy was adopted very precipitously by the Board in reaction to a Circuit Court decision that was filed really close to the election, maybe— maybe . . . 

[ . . . ]

MR. GORDON: . . . the point that is primary in our presentation is that nobody has really given a lot of thought to what the legislature meant by the words null and void in that statute.

 Everybody assumes that null and void somehow means that the individual was not registered at some point during the 180 day circulation period. And we have taken that concept and run with it.

But, the legislature didn’t say that. They could have said that.

 They could have said simply that a signature gained outside a 180 day period shall be—the proponents will be required to demonstrate that that signature is that of a registered elector. They didn’t say that, they used the words null and void, and null and void have a certain dictionary terms that we have laid out in our— in our Brief to this Board.

MS. BRADSHAW: Mr. Gordon, I just have one correction.

MR. GORDON: Sure.

MS. BRADSHAW: Is it stale and void or null and void?

MR. GORDON: I’m sorry, stale and void.

MR. THOMAS: Stale and void.

MR. GORDON: Stale and void. Stale and void and I use the dictionary definition of void as being null. And null has a dictionary definition, and we propose that null—or stale and void can have many meanings. And one of the meanings could be that—and most probably would be that the person still supports the proposal. And in 180 days the—a lot of things can change, and we cited examples.

 One example is the transportation package, for example, people started circulating petitions to place a ballot proposal dealing with a change in the law dealing with the transportation issue. Subsequent to the commencement of the circula-

tion of that petition, the legislature enacted the laws providing for transportation taxes. The proponents of that petition announced that, “We are no longer circulating those petitions because of action by the legislature.”

 Well, in a 180 period, changes of circumstances and so on can certainly cause an individual signatory to a petition to change their mind. And at the end of that 180 day period if a petition is filed we think we would pose that in order to validate that signature the proponents of the petition should be required to come in and provide proof that the signatory to that petition still supports that petition.

 Other states have recognized that by allowing signatures to a petition—signatories to a . . . 

[ . . . ]

  . . . really gotten into that in an argument, but others have and by the scope of this discussion I think that—that demonstrates that that slippery slope you are talking about we are getting to, where you don’t get to that when you talk about the word canvass or counting the signatures, because that’s a very narrow limited area.

MR. THOMAS: Well, just one last thing and then I will be done. So, really all we are talking about is replacement of the process right now, okay. Substituting the way that we are now—so, what you guys are here arguing is that the current process is not constitutional or proper, let me say that, that we really should not rely on the policy developed in 1986 until such time as the legislature gives us clarity.

MR. GORDON: Well, I am arguing that you should not change your policy at this point. That you should—as long as this has been opened up for discussion and people have examined this policy you should ask the legislature for guidance at this point in time.

 The proponents of change have made a valid point. Technology has changed since 1986 and we all recognize that, and that policy has not seen the light of day because nobody has attempted to apply that since 1986. And now that it is open for discussion and people are examining that policy and they are examining that statute, we are stepping back and saying, “Gee what does this actually mean?” “What did the legislature mean?”

 And I think there is an adequate question, or I think there is a question as to what they did mean, and I think there is a broad basis for interpretation in a number of different ways, and where there is that calls for a legislative intervention to explain that, and to assist this Board in further defining what they meant, because I think that language could mean many—any one of a number of things. But, I don’t think its limited to whether or not somebody was registered, because that’s easy to say and the legislature could have said that and they didn’t.

MR. THOMAS: Well, the current policy is just simply that; that is the current policy. And so this policy, if adopted, would certainly make it much, much easier to rebut [sic] signatures signed more than 180 days before. So, I think—and I’m

not sure if that’s a factor here, but I think that would be resolved.

MR. PIRICH: If I could, I just would like to supplement what Mr. Gordon said. That in our closing paragraph in our submission, we state that we therefore respectfully submit that absent a legislative amendment to policy that has been in place for 30 years should remain.

 Number two, a review of the Q.V.F. by a person outside of the Bureau cannot verify that—the genuineness of the signature. In addition, registration alone does not secure a signature if it’s stale. And, lastly, the fact that the legislature used 180 days as a limit, strongly suggests that any signature made outside that time frame is no longer valid absent proof that the signor was and is registered and still supports the proposal.

 So, I think—I think that’s the slippery slope or gray area that you may be getting into really calls for the legislative approach as opposed to the policy approach at this time. Thank you.

MS. BRADSHAW: No further questions? Thank you very much.

MS. PIRICH: Thank you very much.

MR. GORDON: Thank you.

MS. BRADSHAW: Thanks.

MS. PERO: Chris, as I recall, this reading in the Minutes from that infamous now 1986 meeting, at the beginning of the meeting people were going in one direction, and then on came Mr. Bransdorf

(sp) and then there was a switch and suddenly this policy appeared, right?

[ . . . ]

MR. FOX: . . . It introduces some things which— which I would identify as options, you have to check both or neither. If you checked City of Lansing and you are really registered in the Township of Lansing that’s grounds—even though—even though the Bureau can find the person and verify if they’re registered and verify if they signed the right sheet, et cetera; by law they can’t count that signature and they don’t. We deal with what we have.

 Everybody, whether doing challenges or circulating petitions, deals with what we have and we hope that the legislature someday fixes things like that so that—so that there are not options, but in the meantime that’s the law, that’s how we work with them.

 I think we have a similar situation here. Where there is language that says that there is a rebuttable presumption and the question is, “What does it take to exercise that rebuttable presumption?” The Board has a policy that made sense in the 1980’s. It bears no resemblance to how petitions are validated now. Now petitions are not sent to the County Clerk, they are sent to the local clerk. Validation happens entirely at the Bureau Office by looking up names in a version of a qualified voter file that I would point out that is not available to the general public, but is one that is suitable for that purpose.

 I know that at least in some instances the signatures themselves are looked at not merely the state of registration, because every petition that I have seen recently, including the prevailing wage petition, which was most recently acted on has signatures rejected by the Board—by the Bureau and subsequently by the Board, because the signature did not match. I am aware that at least a couple of those cases the filers, at least initially, sought for clarification and were told that’s what it is. I don’t think anything in the preliminary staff respond went back on those. I don’t get to see those signatures, so I don’t know anything beyond what I read in the reports.

 What’s proposed here, if it can be made to be practical, makes a lot of sense, because it—because it accommodates the fact that everybody involved in Michigan petitions works with electronic files, electronic registration data, and validates the registration of a person and the location where they are registered using those electronic files. The state does that, people filing petitions ought to do that; people challenging petitions certainly do that.

 Every challenge that was filed by Mr. Pirich based on work that our firm did on the prevailing wage petition was based only on looking at the data available to the public; voter registrations as they were at that time.

 And, so I hope that, as indicated in my written comments, I went into those in detail, that this can be done in a way that is practical for everybody for people who have to look up all the names and verify the person is still registered, which is a monumental task; don’t underestimate it. It’s— it’s not impossible, but it would be expensive and it will be time consuming in any petition organization that tries to do it will very rapidly discover that no matter how you do it, it’s not an efficient process. But, that also—this information needs to be reported to the Bureau in a way that doesn’t bog down the Bureau’s staff, which has a very very limited amount of time to process tens of thousands of sheets of paper as it is now. And if a petitioner comes in with 50 or 60 or 80,000 rebuttals is going to have that many more pieces of paper to coordinate, match up with the other pieces of paper, and also for challengers. The—I don’t know how much of a secret it is, but we have been involved in two of the significant challenges and given the limited amount of time involved, they are very difficult to pull off.

          You need to scan every single one of the . . . 

[ . . . ]

MR. BOAL: . . . and the current policy missed the mark. And, again, later on, “As to either the existing policy and certainly not the proposed policy meet this test.” So, here is the Chamber of Commerce and Gary Gordon saying the current policy is no good. Never mind that it hasn’t been challenged in 40 years actually. And then he also gives a definition of the word stale, and I even looked at a dictionary, my favorite dictionary by the way, American Heritage.

 John Pirich, on the other hand, says on page 2 of his letter that, and this is a quote now, “We do not know what the legislature intended by the term stale.” So, two people sitting at the same table, one of them says, “Here’s what stale means,” and the other one says, “We don’t know what stale means.” John Pirich also says, “Let’s stay with the old policy,” the one that hasn’t been challenged for 40 years. Gary Gordon says, “No let the legislature handle it.”

 I agree with the overall point of view that this Board cannot make policy on the current policy, what we call the two-timer policy. The Board did make—did make policy, so you have twice. Consumers Power didn’t address that issue. Consumers Power, by the way, is only about Constitutional initiatives, and the Supreme Court and the Court of Appeals were quite clear in saying in their analysis it’s only about—I can never remember the Article number, Article 12 Section 2 I think. I’m sorry I don’t remember the Article number. But, it was only about the constitutional initiative, it was not about legislature initiatives, which is what we are about.

 The Committee to Ban Fracking as a legislature issue, we don’t consider that Consumers Power covers our situation. The Attorney General’s Opinion was only overruled as to constitutional initiatives.

 In fact, in his letter of August 7th, 1986, John Pirich stated that—referring to Judge Bell’s decision in Circuit Court that—that the—this is a quote from his 1986 letter, “It’s Constitutional as applied to petitions proposing a Constitutional

Amendment.”

                        So, we think that the Attorney General’s

Opinion is still good as it applies to legislature initiatives. I haven’t heard anyone contradict that today, and maybe I will, you know the next speaker will say something. But, and we did put it in our letter.

 Sampling; there is no tactical basis in the statute or the Constitution for sampling, but we have sampling. I’m not sure when sampling first started. As I said, we should be looking at the history. I haven’t found so far looking at the history when the first sampling was done, or whether they did sampling in 1908 or whenever the first petition was that was submitted to the Canvassers.

 The Canvassers existed since 1851, I believe, it was already existed at the time of the 1908 Constitution. But, so I think it’s important—I don’t imagine anyone would ever disagree that we all look at the history and the practices of this Board starting in 1908 or whenever the first petition was submitted and for you to examine.

 It’s interesting to me that Gary Gordon made the slip of the tongue when he was saying null and void instead of stale and void. That just is further indication that the statute is, again in my opinion, a void for vagueness. We normally think of void for vagueness as applying to the criminal law, but—and I can provide authority for this if you do want to receive another letter from us, that void for vagueness concept does apply to civil regulatory law.

 We ask you to consider the recommendations of the National Conference of the State Legislatures, which we applied in our—in our letter. They recommend a one year period, as does this guide, Citizen Lawmakers book. And I am going to conclude by just—by just of . . . 

    

BOARD OF STATE CANVASSERS MEETING

RELEVANT EXCERPTS (MARCH 7, 2016)

 

 

[March 7, 2016 Transcript, p. 16]

MR. THOMAS: . . . invalid. So that’s one option that’s been suggested in the comments.

 The other options deal with—and it’s where we would probably look at modifying what we presented as—and perhaps not as attaching the documents to the petition sheets itself but somehow or another having a folder for each sheet and in that folder having the necessary documentation.

 The key for us, if the current policy remains, that these would not be randomly sampled, is that there is a crucial time period involved. Before the sample can even be pulled there has to be a count of the number of facial signatures that have been accepted into the universe. So that means that the decision whether to include a signature more than 180 days old is in or out has to be made prior to polling that sample, and that’s where the logistical issue comes in. So at a minimum, we would continue to require that there be a clear folder-by-folder of each sheet with the necessary qualified-voter-file documents presented so that it would be a very easy check. You know, when you look at the document, you look at the signature of the person and you determine were they registered before the 180 days or were they registered in

the 180 days. That’s the two operative provisions that seem to be in play here.

 So that’s where we are at this point. We did put . . . 

[ . . . ]

MR. GORDON: . . . of unfairness and so on I don’t think are valid here. If there’s support for a proposal, the proposal can easily obtain signatures within that time period. History demonstrates that. The con-con debates over the initiative and referendum talk about how the process isn’t intended to be easy, it’s intended to be provided for the people, but it’s not an automatic slam dunk proposal.

 The existing proposal and the amendments proposed by the director all presuppose one thing that’s not in the statute; that is, that the phrase “stale and void” only applies to whether someone is registered at the time they sign the petition and is registered when the petition is filed. That’s not what the statute says. The statute says that the signatures are rebuttably presumed to be stale and void. There’s no guidance whatsoever in the statute as to what “stale and void” means. Recently—we pointed this out last time and suggested to the board that perhaps “stale and void” could also be interpreted and we think a valid interpretation is that the proponents should have to demonstrate to this board that someone who signed the petition as far as six months before the date it was filed or more than six months, up to—up to a couple of years under the proposals that are being presented to you, should be required to demonstrate that they still support the proposal. Circumstances can change, political climates can . . . 

[ . . . ]

MR. THOMAS: Now, it’s my assumption that while it may create a lot of paper, and perhaps there’s an electronic way to do this—we’d be happy to look at that—it has significantly reduced the burden on the filer. I mean, by fact of not having to deal with either a statement from the voter or a written document from a clerk. That’s a huge burden; no question about it.

 So what we’re looking at is something that staff, as they move through, can look at the documents as they go. Looking it up in the Qualified Voter File is not the way to do that. If the document is clear and sitting in front of the staff person as they’re moving through, that would be, I think, the quicker way to do it. If somebody has some— there’s a lot of talk about electronic. Well, what does that mean? How is that organized, and in what form would that be? We’d be happy to consider that and look at any examples that folks may have. But today we really haven’t received that.

 And then, secondarily, the board in its 1986 motion did say that these will not be rebutted via random sampling. So that would be a significant policy change that the board would have to take if they wanted to go in that direction.

 So those are my only closing comments on that. Again, I appreciate everybody that came and testified today, . . .      

BOARD OF STATE CANVASSERS MEETING

RELEVANT EXCERPTS (MARCH 24, 2016)

 

 

[March 24, 2016 Transcript, p. 18]

MR. THOMAS: . . . order to make it a little more workable.

MS. BRADSHAW: Any questions from the Board before I go to the speakers? I do have a number of people who wish to speak on this agenda item. And it is public comment, so we will not have to swear you in. I’m going to start with Luanne Kozma.

LUANNE KOZMA: Thanks. Could I defer to—until after Alan Fox speaks? Because he might cover some of what I’m going to talk about.

MS. BRADSHAW: Yes. Mr. Jeffrey Hank?

MR. HANK: Thank you, Board. Good afternoon.

REPORTER: Could you please state your full name and spell it for me?

MR. HANK: Jeffrey Hank, J-e-f-f-r-e-y H-a-n-k, on behalf of MILegalize. We’re looking forward to hopefully getting some progress done here. I’ve asked the Bureau a couple times to move forward with this and if not, to provide a form of an affidavit under the 1986 policy. Because nobody knows what that would look like if you don’t take action and we—nobody knows. So we just need something done. We’re approaching pretty quickly a turn-in time here.

 Regarding SB 776, regardless if that passes or not, ongoing campaigns that are operating under this premise need to be able to continue to do so. So even if the legislature changes MCL 168.472(a), ongoing campaigns still have this opportunity to rebut signatures. And I would submit to you that under Article II, Section 9 of the Michigan Constitution, the legislature can’t actually limit the amount of time of the petition to 180 days. They would have to put that up to a vote of the people, because the constitution provides for that four-year period. That’s what it was before 168.472(a) came into effect. 168.472(a), all it does—and there’s great confusion about this—is it treats signatures within that four-year period differently on how they’re qualified. If they’re within 180 days, they’re presumed valid by the Bureau when they canvass the petitions. If they’re outside of 180 days, you have to rebut the signature for staleness. So before that went into effect, there was no difference on 180-day or not, or 190-day old signature or whatever.

 So just so you have some context on that, even going back to 1908, the early constitution, the term and the length of petitioning has always been set by the Michigan Constitution. The legislature actually cannot change that. They can try and they may well do, as we saw the Senate do, but that’s going to be overturned in court. They can’t change the constitution without a vote of the people. So just so you have that context, historically, prior to 168.472(a) coming into effect, there was a four-year period and within that four-year period there was no test for staleness. Staleness means someone is dead, they’ve registered in a different jurisdiction outside of the state, or it’s outside of the fouryear period. And you can go back and look at the 1923 case—I think it’s called Hamilton v. Deland which discusses this, when we used to elect the governor by two-year periods—that the legislature actually has no authority to change that constitutional period.

 So I know there’s a lot of talk about SB 776 but, you know, there’s also a lot of case law about trying to retroactively apply new standards to an ongoing campaign. That, frankly, can’t be done. So even if that is done, we still need some sort of intelligent process for rebutting these, the staleness. And I would submit this is really easy to do. You just give the Bureau authority to use what they think is reasonable to rebut it. And I think it’s the QVF because that’s what state law directs being used, but there’s probably other ways. I mean, they could probably use the CVF or something. So I think you should just give them discretion to use reasonable means to rebut. We’ve proposed a single log similar to what Mr. Thomas said where we could, you know, line by line lay it out.

 But June 1st is steadily approaching. That’s the final deadline to turn in signatures. And we may want to turn in much faster than that, and we’ve got to know how to do it. There’s no—there is no way to do it. So we hope you take some action on this really soon. I’d be happy to take any questions if anybody has any.

MS. BRADSHAW: Any questions from the Board?

MR. SHINKLE: Well, an affidavit is an affidavit. You make a statement and you just get it notarized. I mean, what kind of a form is Mr. Hank talking about?

MR. THOMAS: Yeah. Mr. Hank has sent a letter to us with a suggested format, and we’re responding to that. We should have that to him early next week which would be, under the current law, what would be required. Yeah, it’s pretty straightforward. There’s not much to it in terms of a documentation.

MS. PERO: So you’re saying there already is something in place?

MR. THOMAS: Well, nobody has, first of all, ever asked. But, I mean, yeah. Our procedure was is that it’s an affidavit from a clerk, or a certificate or affidavit from a clerk, and then a record showing that they were registered at the time they signed. So, I mean, one will be a registration record and the other will be an affidavit or certificate.

MR. HANK: Mr. Shinkle, if I just may, it’s not clear understand Michigan law whether an affidavit requires a notary. In fact, the state has all sorts of forms of affidavits that don’t require a notary. Traditionally, I think most people consider an affidavit to require a notary. But the problem with the vagueness of that is we don’t know what’s acceptable. So we don’t want to go through and have 100,000 people sign something that won’t work when we turn it in. So thank you.

MS. BRADSHAW: Thank you much.

MR. HANK: Sure.

MS. BRADSHAW: Thank you very much. Okay. Ellis Boal?

REPORTER: Please state your full name and spell it for me.

MR. BOAL: First name Ellis, that’s E-l-l-i-s. Last name Boal, spelled B, as in “boy,” -o-a-l. A few minutes ago I heard Chris Thomas referred to as Chris rather than Mr. Thomas. I like that. I like first names. Please call me Ellis, if you care to speak with me.

 Just a few quick comments. It looks like there will not be a vote today. Had there been a vote, I would be questioning the propriety of that, being an absent member, but I guess that’s moot.

 Just an additional point to what Jeff Hank said to you a moment ago about the continuing bindingness of the four-year governor’s term. And he didn’t mention . . .         

BOARD OF STATE CANVASSERS MEETING

RELEVANT EXCERPTS

(MAY 12, 2016)

 

 

[May 12, 2016 Transcript, p. 12]

MR. THOMAS: . . . their staff are going to have to go find a clerk who is going to provide them an affidavit or certificate saying that they have reviewed the registration records and that this person is, in fact, registered at both times. So that is a pretty laborious process with 1500 city and township clerks and 83 county clerks. A wrinkle that you’re likely to hear about—and I did circulate an e-mail from Mr. Hank to you—is that—and we have started to hear—Mr. Hank continues to assist us in our workload—from a number—we’re hearing from clerks and the clerks are asking the question, “Well, am I required by law to do this?” And I can’t find that requirement anywhere that the clerks are required to do that. And a number—a few clerks have told me that they’ve declined the invitation to do that.

 So that’s under the current system. It’s quite a laborious, obviously, process. It was adopted in 1986, quite a ways before the Qualified Voter File was put in place in the mid to late ’90s. So the intervening change is that the Qualified Voter File is now in place. It’s the official file. It certainly has eased registration issues on all kinds of levels, whether it’s getting lists, whether it’s moving, make sure that registrations remain current. I mean, it’s done a number of things to really update the process. So likewise here, when

the request came in, yes, we thought that the Qualified Voter File could fit into this . . . 

 

 

AFFIDAVIT OF MATTHEW ABEL

(JULY 15, 2016)

 

 

The undersigned, being first sworn, deposes and says:

1. I, Matthew Abel, make these statements which are true to the best of my knowledge.

2. I am over the age of 18 and can testify to these facts based on my own personal knowledge.

3. I circulated petitions on behalf of MILegalize, and signed the petition myself on June 25, 2015.

4. I have been involved in several prior statewide grassroots ballot initiative campaigns.

5. I have a unique perspective on the Milegalize campaign, based on experience as a Director of MILegalize, and in my own experience having circulated various nominating, referendum and initiatory petitions in other instances.

6. The rebuttable presumption of MCL 168.472a, and the 180-day petitioning time limit in 2016 PA 142, are unduly burdensome on the petitioning process and abridge the general exercise of political speech, free association, freedom to protest, and freedom to petition to redress the government for grievances.

7. Based on experience with signers, the issue of duplicate signatures striking any valid signature, combined with the threat of criminal prosecution if a person knowingly signs a petition more than once, leads to great confusion amongst the public, disenfranchisement of qualified electors, and has a chilling effect on freedom of speech. Many people on the street do not know whether they can sign the petition again or not and they are aware of the 180 day issue generally.

 

                                               /s/ Matthew Abel                             

 

Date: July 15, 2016

 

STATE OF MICHIGAN ss.

COUNTY OF INGHAM

Signed and sworn before me on July 15, 2016. I attest that the Declarant appears to be of sound mind and not under or subject to duress, fraud, or undue influence, and acting on free will.

 

                                              /s/ Jillian R. Rosati                         

Notary Public, State of MI

Wayne County, Michigan

My Commission Expires: 6-29-

2020

Acting in Wayne County, Michigan

 

               

AFFIDAVIT OF ALAN FOX

(JUNE 1, 2016)

 

 

The undersigned, Alan Fox, being first sworn, deposes and says:

1. This filing contains rebuttals for the MILegalize initiative and other notes on the status of every line of 28,506 pages on which at least one signature is dates before December 5, 2015. Some explanation:

2. There are a number of additional pages filed as requiring rebuttals and Information on these pages will be provided as soon as possible. Of the lines on the pages documented:

-       137,029 lines contain information from the Qualified Voter File (QVF) and no comment in the EXPLANATION column. These are rebuttals.

-       54,669 lines are noted as ‘NO REBUTTAL.’ These are signed lines for which we have no rebuttal of the presumption of staleness at this time.

-       91,570 lines are noted as blank or crossed out or are conceded as invalid for reasons other than the date of signature.

-       1,794 lines were signed on or after December 5, 2015 and are noted as not requiring rebuttal. Any other line that on its face has a signing date of December 5, 2015 or later but is not noted as such in the file should be similarly treated even if the notation in the file indicates otherwise.

3. The electronic file submitted along with the petitions is a comma-delimited text file containing 285,061 lines, including a header line with column names. Because of its size it was not exported from an Excel application and the column headers wereentered manually. If there is an apparent error in the headers we can provide a replacement file with the header corrected.

 

                                              /s/ Alan Fox                                     

 

Date: 6/1/2016

 

STATE OF MICHIGAN ss.

COUNTY OF INGHAM

Signed and sworn before me on June 1, 2016. I attest that the Declarant appears to be of sound mind and not under or subject to duress, fraud, or undue influence, and acting on free will.

 

                                        /s/ Jeffrey A. Hank                              

Notary Public

Ingham County, Michigan My Commission Expires:

August 24, 2021

Acting in Ingham County, Michigan

 

               

AFFIDAVIT OF CHRIS SILVA

(JUNE 16, 2016)

 

 

STATE OF MICHIGAN

IN THE COURT OF CLAIMS

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE A/K/A MILEGALIZE,

Plaintiff,

v.

RUTH JOHNSON Michigan Secretary of State,

CHRISTOPHER THOMAS Director of Bureau of Elections, and BOARD OF STATE CANVASSERS,

Defendants.

________________________

Case No. 16-000131-MM

 

 

Affiant hereby attests under oath that:

1. I am the campaign manager of MILegalize.

2. As such, I travelled throughout the State picking up petitions from circulators, who were often disabled or living in poverty, making it very burdensome for them to travel.

3. I manage ballot initiative campaigns as my profession, and have managed many.

4. Based upon my experience, it is unduly burdensome to collect the requisite numbers of signatures within 180-days.

5. Also, it is unduly burdensome to obtain affidavits from signers or local clerks and no process exists for doing so.

 

                                              /s/ Chris Silva                                 

 

June 16, 2016.

 

STATE OF MICHIGAN ss.

COUNTY OF INGHAM

Signed and sworn before me on June 16, 2016. I attest that the Affiant appears to be of sound mind and not under or subject to duress, fraud, or undue influence, and acting on free will.

 

                                              /s/ Jeffrey A. Hank                          

Notary Public

Ingham County, Michigan

                                              My        Commission         Expires:

8/24/2021

 

               

AFFIDAVIT OF NICHOLAS ZETTELL

(JUNE 16, 2016)

 

 

STATE OF MICHIGAN

IN THE COURT OF CLAIMS

________________________

MICHIGAN COMPREHENSIVE CANNABIS LAW REFORM COMMITTEE A/K/A MILEGALIZE,

Plaintiff,

v.

RUTH JOHNSON Michigan Secretary of State,

CHRISTOPHER THOMAS Director of Bureau of Elections, and BOARD OF STATE CANVASSERS,

Defendants.

________________________

Case No. 16-000131-MM

 

 

Affiant hereby attests under oath that:

1. I am the deputy campaign manager of MILegalize.

2. As such I travelled all over the State picking up petitions from circulators, including many disabled persons and others unable to travel.

3. Based upon my experience, it is unduly burdensome to collect the requisite numbers of signatures within 180-days, and it is unduly burdensome to collect signor or clerk affidavits under 1986 BOC policy.

 

                                              /s/ Nicholas Zettell                          

 

STATE OF MICHIGAN ss.

COUNTY OF INGHAM

Signed and sworn before me on June 16, 2016. I attest that the Affiant appears to be of sound mind and not under or subject to duress, fraud, or undue influence, and acting on free will.

 

                                              /s/ Jeffrey A. Hank                          

Notary Public

Ingham County, Michigan

My Commission Expires: 8/24/2021

 



[1] Qualified Voter File (QVF) Plays a Vital Role in Michigan’s Election System, available online as of June 14, 2016 at http:// www.michigan.gov/sos/0,8611,7-127-1633_8716-27675—,00.html

[2] Since this action has been pending, the Legislature amended MCL 168.472a to remove the rebuttable presumption of staleness and prohibit the counting of signatures that are more than 180 days old. Effective June 7, 2016, the statute now provides:

[3] Nothing in this opinion should be read or construed as this Court expressing an opinion relative to the merits of the contents of this ballot initiative. This Court has not been asked and does not address whether the legalization of marijuana as set forth in the ballot initiative constitutes sound public policy. Should this initiative be placed on the ballot in this State, it is for the citizens of this State—not this Court—to espouse and ultimately decide the merits of this ballot initiative.

[4] For a legislative initiative, Const. 1963, art. 2, § 9 requires signatures totaling at least 8% of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. For the 2016 election, that number is 252,523.